of  the 
TJorJ:  Citi/ 

tcr  a&iMst  in  jxtiorin 
J/ibmry  of  ike 


of  (Jan.  u*ran,ctico 

in  the  jjjxatj'ire  of 
lpr.il  1306 


DALY'S 


COMMON  PLEAS  REPORTS, 


EEPORTS    OF    CASES 


ARGUED  AND  DETERMINED  IN  THE 


COUET  OF  COMMON  PLEAS 


FOR   THE 


CITY  AND  COUNTY  OF  NEW-YOKK 


BY  CHARLES.  P.  DALY,   LL.D., 

FIRST  JUDGE    OF   THE    COCRT. 


VOL.   L 


NEW-YORK: 
BAKER,    VOORHIS    &    Co.,   LAW   PUBLISHERS, 

(SUCCESSORS    TO    JOHN    8.    VOORHIES,) 

66  NASSAU  STREET. 
1868. 


v-1 


Entered,  according  to  Act  of  Congress,  in  the  year  1866, 
BY  BAKER,  VOORHIS  &  COMPANY, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Southern  District 

of  New-York.  • 


JUDGES 

• 

OF    THE 

COURT   OF    COMMON   PLEAS 

FOR   THE 

CITY    AND    COUNTY    OF    NEW-YORK, 

SINCE   ITS    EEOKGANIZATION   IN   1821, 

WITH   THE   YEARS   IN   WHICH   THEIR   OFFICIAL   TERMS   ORIGINALLY 
COMMENCED. 


JOHN  T.  IRVING, 1821 

MICHAEL  ULSHOEFFER, 1834 

DANIEL  P.  INGRAHAM, .  1838* 

WILLIAM  INGLIS, 1839 

CHARLES  P.DALY, 1844 

LEWIS   B.  WOODRUFF, 1850|- 

JOHN  R.  BRADY, 1856 

HENRY  HILTON, ' 1858 

ALBERT   CARDOZO, 1863 

*  Elected  to  the  Supreme  Court. 
f   Elected  to  the  Superior  Court. 


JUDGES  DURING  THE  PERIOD  EMBRACED  IN  THESE  REPORTS. 

CHARLES  P.  DALY,  FIRST  JUDGE. 
JOHN  R.  BRADY,         ) 
HENRY  HILTON,         V  JUDGES. 
ALBERT  CARDOZO,*   ) 


Succeeded  to  Judge  HILTON  in  1863. 


A  VERY  general  desire  having  been  expressed  for  the 
continuation  of  the  Reports  of  this  Court,  the  present 
volume  has  been  undertaken,  embracing  the  decisions 
of  the  General  Term,  held  by  all  the  judges,  from  the 
close  of  Judge  HILTON'S  Reports  in  July,  1859,  except 
those  which  have  already  appeared  in  Abbotts'  or 
Howard's  Reports. 

The  Editor  has  been  assisted  hi  the  preparation  of  the 
volume  by  AMASA  A.  REDFIELD,  Esq.,  the  reporter  of 
the  decisions  of  the  New-York  Surrogates'  Courts,  to 
whom  he  feels  under  great  obligations.  The  cases  have 
all  of  them,  however,  been  examined,  and  in  many  cases 
entirely  prepared  by  the  Editor ;  and  the  proof  in  every 
case  has  been  read  and  revised  by  him  in  the  passage 
of  the  work  through  the  press. 

The  Reports  have  been  confined,  with  three  excep- 
tions, to  the  decisions  of  the  General  Term,  and  it  is 
hoped,  in  view  of  the  diversity  and  importance  of  the 
questions  determined,  that  the  volume  will  be  found  of 
equal  interest  with  those  which  have  preceded  it. 


GASES 


REPORTED   IN   THIS  VOLUME. 


Adams  v.  Cole, 147 

Albany  &  Buffalo  Telegraph  Co. 

De  Rutte  «., 547 

American  Telegraph  Co.,Bryant «.,  575 

Annett  v.  Foster, 505 

Applegate,  Smith  v., 91 

Arent  -c.  Squire, 34*~ 


B 


Bailey  c.  Johnson, 61 

Baker  v.  Bourcicault,  ..'...  24 

Baker  «.  Connell, 469 

Ball  «.  The  New  Jersey  Steamboat 

Company, 491 

Ballard  v.  Lockwood, 158 

Bay  State  Steamboat  Co.,  Mudg- 

ett  «., 152 

Baxter  v.  Wallace, 303 

Bean  v.  Mather, 440 

Beardsley  v.  Sherman, 325 

Bedford  t>.  Terhune 371 

Benedict  v.  The  Ocean  Insurance 

Co., 8 

Benedict  «.  Dunning, 241 

Berry  v.  Mayhew, 64 

Bishop  v.  Bniffen, 155 

Bishop,  Yonkers  Fire  Insurance 

Company  v., 449 

Black  «.  Sixth  Aye.  R  R  Co.,  .  .  536 

Bloomer  v.  Merrill, 485 

Blun,  Loeschigh  »., 49 

Blydenburgh.^Martin ».,  .  .  .  .  814 

Bock,  Hauterman  «., 366 

Bogart  0.  Dean, 259 

Bourcicault,  Baker  «., 24 

Bowerman,  Meeks  «., 99 

Bowles,  Bryan  t»., 172 

Boston  Carpet  Co.  v.  Journeay,  .  .  190 

Bradburn,  Case*., 256 

B*rady,  Lahey  ti., 443 

Brewer,  Sorley «., 79 

Bryan  v.  Bowles, 172 


Bryant  v.  American  TeL  Co.,    .    .  575 

Buchanan,  Grinnell  «., 538 

Buhler,  Vincent  «., 165 

Buhler,  The  Fire  Dep'tm't,  «fca  ».,  391 

Buttman,  Rowan  v., 413 

Butt «.  Peck, 83 

Butler,  Smith  v 508 

Byrne  v.  Herran, 344 


0 


Cannavan  v.  Conklin, 509 

Cannon,  Dean  0., 34 

Cary  v.  Thompson, 85 

Case  v.  Bradburn, 256 

Cassin  v.  Delaney, 224 

Catley,  Herrick  «., 512 


Christalar,  Lester  v., 


29 


Cole,  Adams  «.,    .......  147 

Columbian  Fire  Insurance  Com- 

pany 
Conklin,  Cannavan  0., 


509 
Connell,  Baker  v.,    ......  469 

Corlies,  Farish  c^    ......  274 


Cox,  Welts  «.,  ........  515 

Cummmgs  v  .  Mills,  ......  520 


D 


Day  0.  The  Orient  Mutual  Insur- 
ance Co., 13 

Dayton  «.  Rowland, 446 

Dean,  Bogart  «., 259 

Dean  r.  Cannon,  .......    34 

Decker,  Loomis  t>., 186 

Delaney,  Cassin  t>., 224 

De  Lever,  Wells  c., 39 

De  Rutte  v.  The  Albany  &  Buffalo 

Telegraph  Co., 547 

Dikemuii ~v.  Puckhafer,     ....  489 

Discon,  Johnson  v., 178 

Dubois  e.  Thompson, 309 

Duff,  Fox  «., 196 

Dunbar,  Emery  »., 408 

Dunham  «.  Pettee, 112 

Dunning,  Benedict  v. 241 


CASES  KEPOKTED. 


E 


Eckstein  v.  Frank, 334 

Ellis  v.  The  Mayor,  &c.,    ....  102 
Emery  v.  Dunbar, 408 


F 

Parish  v.  Corlies,    .... 
Farrington,  Mangum  «.,   .    . 
Fash  v.  The  Third  Avenue  Rail- 
road Co., 

Ferris,  Smith  »., 

Fire  Department,  &c.  v.  Buhler, 

Fisher  v.  Merwin, 

Fitzgerald,  Petrie  «>.,.... 

Foster,  Annett  »., 

Fox  «.  Duff,     ....... 

Frank,  Eckstein  0.,  ....*. 


274 
236 

148 
18 
391 
234 
401 
503 
196 
334 


G 

Gilhooly  v.  The  New  York  &  Sav- 
annah Steam  Navigation  Co.,  197 
Glen  Cove  Starch  Co.,  Trow  «.,     .  280 

Goings  v.  Patten, 168 

Great  Western  Railway  Co.,  Le 

Sage  v., 306 

Greaton  v.  Smith,     .    .    .    .    .    .380 

Grinnell  ».  Buchanan, 538 

H 


Hadden  «.  N.  Y.  Silk  Manufactur- 
ing Co.,  .'  .  . 

Hagar,  James  v., 

Haley,  Gates  a., 

Hall,  Harper  ®., . 

Halpin,  Wilson  v., 

Harper  v.  Hall, 

Harriott  v.  N.  J.  Transportation 
Co., Vi 

Harrison,  Thompson  v.,   .    .    .    . 

Harnden's  Express,  Moriarty  ».,    . 

Hauterman  v.  Bock, 

Hawkins,  Schieffelin  ».,.... 

Hawley,  Matter  of 

Hawley,  Western  Transportation 
Co.  »., 

Henderson  v.  Sturgis, 

Herran,  Byrne  «>., 

Herrick  v.  Catley, 

Honegsberger  v.  Second  Avenue 
Railroad  Co., 

Hopkins  v.  Wyckoff, 

Hoyt  t.  Sixth  Avenue  R.  R.  Co.,  . 

Hunt  v.  Singer, 

Hyde  v.  Van  Valkenburgh,  .    .    . 


Independent  Lin«  of  Telegraph, 

Rittenhouse  «., 474 

Irving  Bank,  Schneider  «.,...  500 


Jacobs  v.  Morange, 523 

Jacobs,  Myera., 82 

James  v.  Hagar, 517 

Jaroslauski  v.  Saunderson,    .    .    .  232 

Johnson,  Bailey  «., 61 

Johnson  v.  Discon, 178 

Journeay,  The  Boston  Carpet  Com- 
pany 0., 190 


K 

Kelly,  Kelso  v.,    .    .    .  . .    .    .    .419 

Kelly,  Reynolds  «., 283 

Kelso  «.  Kelly, 419 

Kenyon,  Thomas  «., 132 

Knox  v.  Nutt, 213 

Kunz  v.  Stuart, 431 


Lahey  v.  Brady, 443 

Lenke,  Shaw  t>., 487 

Lent,  Wallace  «., 481 

Lester  ».  Christalar, 30 

Le  Sage  v.  Great  Western  Railway 

Co., 306 

Levy,  Sperling «., 95 

Lewis,  Smith  v 452 

Lightstone,  Ogilvie  »., 129 

Lockwood,  Ballarda., 158 

Loeschigh  v.  Blun, 49 

Loomis  v.  Decker, 186 

Lyons,  May  or  &c.,  of  New  York  ».,  296 


388 
517 
338 
498 
496 
498 

377 
302 
227 
366 
289 
531 

327 

336 
344 
512 

89 
176 
528 

209  Matter  of  Hawley, 531 

416;  Matter  of  Miller 562 


M 

McAuley  v.  Meldrum, 396 


285 


Mcllhenny  v.  Wasson, 

Mcllvain,  Place  v., 266 

McLaren  v.  Mayor,  &c.,  of  New 

York, 

Mangum  v.  Farrington,  .... 
Martin  v.  Blydenburgh,  .... 
Mather,  Bean  v., 440 


243 

236 
3*4 


CASES  KEPOKTED. 


XI 


Matter  of  Scott, 534 

Mayhew,  Berry  v., 54 

Mayor,  &c.,  of  New  York,  Ellis  ».,   102 
Mayor,  &c.,  of  New  York,  McLa- 
ren «., 24? 

Mayor,  &c.,  of  New  York,  O'Mea- 

ra  «., 42 

Mayor,  &c.,  of  New  York,  Pur- 
due «.,    121 

Mayor,  &c.,  of  New  York  v.  Lyons,  296 
Mayor,  &c.,  of  New  York,  Rus- 
sell «., 263 

Mayor,  &c.,  Smith  v., 21S 

Mayor,  &c.,  Treadwell «.,  .    .    .    .  12? 

Mayor,  &c.  v.  Tucker, 10? 

Meeks  v.  Bowerman, 99 

Merrill,  Bloodier  v., 485 

Merwin,  Fisher  v.t    .......  234 

Methodist    Book    Concern,    Ro- 
bert! t>., 3 

Mildruin  v.  McAuley, 396 

Miller,  Matter  of 562 

Mills,  Cummings  t>., 520 

Montegriffo  v.  Musti, 77 

Morange,  Jacobs  v., 522 

Moriarty  v.  Harnden's  Express,  .  227 
Morrris  c.  Third  Avenue  R  R  Co.,  202 
Mudgett  v.  Bay  State  Steamboat 

Co., 152 

Murphy,  The   People  ex  rel  La- 

rpcque  «., 462 

Musti,  Montegriffo  v., 77 

Myer  t>.  Jacobs, 82 


Patten,  Goings  v., 168 

Peck,  Butt  «., 83 

People  ex  rd  Larocque  v.  Murphy,   462 

Peterson  «.  Walsh, 179 

Pettee,  Dunham  «., 112 

Petrie  v.  Fitzgerald, 401 

Place  c.  Mcllyain, 266 

Puckhafer,  Dikeman  v., 489 

Purdue  v.  The  Mayor,  &c.,    .    .    .121 


R 

Rappellyea  v.  Russell, 214 

Raynor,  Stilwell  «., 47 

Reimer,  Schuschard  v.,  ....  459 

Reynolds  t>.  Kelly, 283 

Riblet  v.  Wallis, 360 

Richards  v.  Vanderpool,  ....  71 
Rittenhouse  v.  The  Independent 

Line  of  Telegraph,  ....  474 
Roberti  v.  The  Methodist  Book 

Concern, 3 

Rogers  ».  Rogers, 194 

Rogers,  Rogers  v.t 194 

Rowan  v.  Buttman, 413 

Rowland,  Dayton  v., 446 

Russell,  Rappelyea  v., 214 

Russell  v.  Mayor,  &c.,  of  New 

York, 263 


Neidig,  Solomon  «., 200 

New  Jersey  Steamboat  Company. 
Ball*., .491 

N.  J.  Transportation  Co.,  Harri- 
ett ».,  377 

New  York  &  Savannah  Steam  Nav. 
Co.,  Gilhooly  v., 197 

N.  Y.  Silk  Manufacturing  Co.,  Had- 
den«., 388 

Nichols,  Sager  t>., 1 

Nutt,  Knox  t>., 218 


0 

Gates  c.  Haley, 

Ocean  Insurance  Co.,  Benedict  v., 
Ogilvie  v.  Lightstone,    ... 
O'Meara  v.  The  Mayor,  &c.,  of  New 

York •  . 

Orient  Mutual  Insurance  Company, 


838 

8 

129 

425 
13 


s 


Sager  v.  Nichols, 1 

Saunderson,  Jaroslauski  v.t   ,    .    .  232 
Second  Avenue  R  R  Co.,  Hon- 

egsberger  v., 89 

Schieffelin  v.  Hawkins,     ....  289 
Schneider  v.  The  Irving  Bank,  .    .  500 

Schnschard  v.  Reimer, 459 

Scott,  Matter  of 534 

Sherman,  Beardsley  v.,     ....  325 

Shaw  v.  Lenke, 487 

Sixth  Ave.  R.  R  Co.,  Black  «.,  .    .  536 
Sixth  Avenue  R  R.  Co.,  Hoyt  ».,  .  528 

Smith  v.  Ferris, 18 

Smith  v.  Applegate, 91 

Smith  v.  The  Alayor,  &c.,      .    .    .219 

Smith,  Vanderpool  v., 311 

Smith,  Greaton  v., 380 

Smith  v.  Lewis, 452 

Smith  v.  Butler, 308 

Sniffen,  Bishop  r., 155 

3'maer,  Hunt  0., 209 

Solomon  v.  Neidig, 200 

Sorley  v.  Brewer, 79 

Sperling  v.  Levy, 95 


Xll 


CASES    REPORTED. 


Stilwell  «.  Raynor, 47 

Stuart,  Kunz  v., 431 

Stuart «.  The  Col  umbian  Fire  Insur- 
ance Company, 471 

Sturgis,  Henderson  0., 336 

Squire,  Arent «., 347 


T 


Terhune,  Bedford  «., 371 

Third  Avenue  R.  R.  Co.,  Fash  «.,  .  148 
Third  Avenue  Railroad  Company, 

Morris  »., 202 

Thomas  v.  Kenyon, 132 

Thomas  v.  Wickmann, 58 

Thompson,  Gary «., 35 

Thompson,  Dubois  «., 809 

Thompson  v.  Harrison,  ....  302 
Tradesmen's  Fire  Insurance  Co., 

Williams  0., 437 

Tradesmen's  Fire  Insurance  Co., 

Williams*., 322 

Treadwell  v.  The  Mayor,  &c.,  .  .  123 
Trow  v.  Glen  Cove  Starch  Co., .  .  280 
Tucker  v.  The  Mayor,  &c.,  .  .  .107 


Vanderpool,  Richards  v.,  ....    71 
Vanderpool  v.  Smith,   .....  311 


Van  Valkenburgh,  Hyde  »., 
Vincent  v.  Buhler, 


416 
165 


w 

Wallace,  Baxter  v .303 

Wallace  v.  Lent, 481 

Wallis,  Riblet  «., 860 

Welsh,  Peterson  v., 179 

Wasson,  Mcllhenny  «., 285 

Wehrkamp  v.  Willet, 4 

Wells  v.  De  Leyer, 39 

Wells  «.  Cox, 515 

Western    Transportation    Co.    v. 

Hawley, 327 

Wickmann,  Thomas «.,....    58 

Willet,  Wehrkamp  v., 4 

Williams  0.  Tradesmen's  Fire  Insu- 
rance Co., 322 

Williams  v.  The  Tradesmen's  Fire 

Insurance  Co., 437 

Wilson  0.  Halpin, 496 

Wyckoff,  Hopkins  »., 176 


Yonkers  and  N.  Y.  Fire  Ins.  Co. 
v.  Bishop, 449 


THE 


COURT  OF  COMMON  PLEAS 

FOB  THE 

CITY  AND  COUNTY  OF  NEW  YOKE. " 


WILLIAM  SAGEK  v.  SELLICK  NICHOLS,  impleaded,  <&c. 

For  supplies  famished  a  vessel  upon  the  order  of  the  captain,  while  acting 
for  the  owners,  the  owners  are  liable  in  solido ;  and  a  non-joinder  of  any 
part-owner  in  an  action  to  recover  for  such  supplies  may  be  taken  advan- 
tage of  by  plea  in  abatement. 

In  an  action  against  the  owners  of  a  vessel  for  supplies  furnished  her,  where 
only  one  of  the  defendants  is  served,  and  it  does  not  appear  by  the  evi- 
dence that  the  other  defendants  are  part  owners — Held,  that  there  was  a 
clear  misjoinder  of  parties  defendant,  which  the  defendant  served  was 
entitled  to  take  advantage  of  at  the  trial,  and  his  motion  for  a  nonsuit 
should  have  been  granted. 

In  an  action  against  joint  debtors  or  obligors  where  all  are  named  as  de* 
fendants  a  several  judgment  cannot  be  given. 

APPEAL  by  defendant  from  a  judgment  of  the  Marine  Court 
at  General  Term.  The  action  was  brought  to  recover  sixty 
dollars  for  help  furnished  the  captain  of  the  schooner  J.  T. 
Johnson.  The  action  was  against  the  owners  of  the  vessel, 
all  of  whom  were  included  as  parties  defendant,  but  only  the 
defendant  Nichols  was  served  with  process,  and  plaintiff  en- 
deavored to  recorer  against  him  as  one  of  the  owners. 

At  the  trial  the  defendant's  counsel  moved  for  a  nonsuit 
on  the  grounds,  among  others,  that  plaintiff  had  not  shown 


COURT    OF  COMMON    PLEAS. 


Sager  v.  Nichols. 


that  all  of  the  defendants  named  in  the  process  were  part 
owners  of  the  vessel ;  that  it  did  not  appear  that  the  defend- 
ants were  jointly  liable,  or  that  the  other  defendants  were 
proper  parties ;  that  a  several  judgment  could  not  be  rendered 
against  defendant  Nichols ;  and  that  it  appeared  that  plain- 
tiff had  not  used  diligence  in  endeavoring  to  serve  the  other 
defendants.  The  motion  for  nonsuit  was  denied,  and  the 
jury,  upon  the  charge  of  the  Court,  rendered  a  verdict  in  fa- 
vor of  plaintiff,  for  the  amount  claimed.  The  judgment  was 
affirmed  at  General  Term,  and  the  defendant  appealed. 

Solomon  L.  Hull,  for  appellant. 

Benedict,  Burr  &  Benedict,  for  respondent. 


BY  THE  COURT. — HILTON,  J. — 1.  For  supplies  furnished  a 
vessel  upon  the  order  of  the  captain,  while  acting  for  the 
owners,  the  owners  are  liable  in  solido,  and  a  non-joinder  of 
any  part  owner  in  an  action  to  recover  for  such  supplies  may 
be  taken  advantage  of  by  plea  in  abatement.  Abbott  on  Ship- 
ping, 150,  151,  (7th  Am.  Ed.) ;  Parsons'  Mercantile  Law, 
338 ;  Story  on  Partn.  §  419  ;  3  Kent  Com.  154,  155  ; 
Colly  er  on  Partn.  §  1226  ;  Ward  v.  Green,  6  Co  wen,  173. 

2.  The  complaint  averred  the  defendants  to  be  owners  of 
the  vessel ;  it  alleged  a  joint  liability,  and  the  plaintiff  was 
required  to  prove  a  joint  indebtedness.  The  evidence  only 
showed  two  of  the  defendants  named  to  be  owners. 

There  was  a  clear  misjoinder  of  parties  defendants,  which 
the  appellant  was  entitled  to  take  advantage  of  at  the  trial  by 
his  motion  then  made  for  a  nonsuit.  Graham's  Practice, 
95 ;  Harrington  v.  Higham,  15  Barb.  524 ;  Robertson  v. 
Smith,  18  John.  459.. 

5.  In  an  action  against  joint  debtors  or  obligors,  where  all 
are  named  as  defendants,  a  several  judgment  cannot  be  given. 
Oilman  v.  Rives,  10  Peters,  298  ;  Robertson  v.  Smith,  18 
John.  459,  sup. ;  May  v.  Roberts,  2  Bos.  &  Pul.  K  S.  454; 
1  Chitty  PL  46,  6th  Am.  Ed. ;  Code,  §  136,  sub.  1.) 

Judgment  reversed. 


NEW  YORK— JULY,   1859. 


Roberti  v.  The  Methodist  Book  Concern. 


HENRY    H.   ROBERTI  AND  MARGARET  ROBERTI,   HIS  WIFE,   v. 
THE  METHODIST  BOOK  CONCERN. 

A  married  man  having  his  family  fixed  in  one  place,  but  doing  business  at 
another,  is  deemed  to  have  his  residence  at  the  former,  and  while  his  fam- 
ily so  remain  fixed,  he  cannot  acquire  a  residence  elsewhere. 

Although  by  reason  of  a  prolonged  absence  from  the  State,  a  party  might 
be  proceeded  against  by  attachment  at  the  instance  of  a  creditor,  yet  he 
may  be  deemed  a  resident  of  this  State  for  all  other  purposes. 

Thus,  where  a  plaintiff  had  been  absent  from  the  State  for  more  than  two 
years,  on  business,  but  his  wife  and  minor  child  continued  to  reside  here 
— Held,  that  the  plaintiff  was  not  such  a  non-resident  as  that  the  Court 
would  compel  him  to  file  security  for  costs. 

APPEAL  from  an  order  granted,  on  motion,  at  Special  Term, 
requiring  the  plaintiffs  to  file  security  for  costs  within  twenty 
days.  The  affidavits  on  both  sides,  read  on  the  .motion,  show 
that  Henry  H.  Roberti,  one  of  the  plaintiffs,  and  husband  of 
the  other  plaintiff,  was  not  in  this  State  at  the  commence- 
ment of  the  action,  and  had  not  been  in  this  State  for  more 
than  two  years. 

The  action  was  brought  to  recover  damages  for  injuries  to 
the  person  of  the  plaintiff,  Margaret  Roberti,  and  to  the  fur- 
niture in  her  apartments,  caused  by  the  fall  of  a  chimney, 
built  and  owned  by  the  defendants,  on  their  premises  near 
the  apartments  where  Margaret  Roberti  lodged. 

The  plaintiff,  Margaret  Roberti,  in  her  affidavit  in  opposi- 
tion to  the  motion,  alleged  that  her  husband  was  absent  from 
New  York  -on  business ;  that  she  did  not  know  the  exact 
place  in  which  he  was ;  but  she  thought  he  was  then  in  Kan- 
sas or  Texas,  and  would  soon  return  to  his  residence  in  this 
city.  That  since  his  absence,  she  and  her  minor  daughter  have 
resided  in  this  city,  and  had  received  letters  from  her  husband 
from  time  to  time,  expressing  an  intention  to  return  to  his 
home  here. 

C.  L.  Spilthorn  and  John  B.  Fogarty  for  appellants. 
E.  L.  Fancher  for  respondents. 


COURT  OF  COMMON  PLEAS. 


Wehrkamp  v.  Willet. 


BY  THE  COURT. — HILTON,  J. — When  the  plaintiff,  Henry  H. 
Roberti,  left  this  city  two  years  ago,  he  was  a  resident  of  this 
State,  his  domicil  and  family,  having  been  located  here  for 
about  two  years  previously. 

Although,  by  reason  of  his  prolonged  absence,  he  might  be 
proceeded  against  by  attachment  at  the  instance  of  a  creditor, 
yet  .he  is  Btill  to  be  deemed  a  resident  of  this  State  for  all  other 
purposes. 

A  married  man  having  his  family  fixed  at  one  place,  but 
doing  business  at  another,  the  former  is  to  be  deemed  his  place 
of  residence  ;  and  while  his  family  so  remain  fixed,  he  cannot 
acquire  a  residence  elsewhere  :  the  rule  being  that  his  original 
domicil  must  prevail  until  he  acquires  another.  Phillimore's 
Law  of  Domicil,  §§  28,  209  ;  Matter  of  Thompson,  1  "Wend. 
44 ;  Chaine  v.  Wilson,  1  Howard,  552,  558  ;  Jdoughton  v. 
Ault,  Id.,  78. 

The  case  of  Wright  v.  Black  (2  Wend.  258),  cited  by  re- 
spondent as  controlling  the  present  case,  was  prior  to  the  Re- 
vised Statutes,  and  seems  to  be  under  a  rule  of  Court  made  in 
January,  1799.  Besides,  it  did  not  there  appear  that  the  plain- 
tiff had  a  family,  or  any  fixed  place  of  abode. 

Order  appealed  from  reversed  with  $10  costs. 


ELLA  E.  B.  WEHKKAMP  v.  JAMES  C.  WILLET,  Sheriff,  &c. 

Although  a  new  trial  will  not  be  granted  on  evidence  merely  contradicting 
the  testimony  on  which  the  verdict  proceeded,  discovered  subsequent  to  the 
trial,  yet  where  the  facts,  on  which  the  witnesses  for  the  prevailing  party 
founded  themselves,  are  falsified  by  the  affidavits  produced  on  the  motion,  it 
affords  a  sufficient  ground  for  ordering  a  new  trial. 

In  an  action  by  a  married  woman  against  the  sheriff  for  taking  certain  per- 
sonal property,  claimed  by  her  to  be  her  separate  estate,  upon  a  judgment  and 
execution  against  her  husband — Held,  that  her  testimony  on  the  trial  tend- 
ing to  show  her  ability  to  purchase  the  property  claimed,  with  moneys  of 
her  own,  and  independent  of  her  husband,  was  material  to  the  issue. 

And  where  it  is  shown  beyond  dispute,  by  affidavit,  on  a  motion  for  a  new 
trial,  that  her  testimony  on  that  point  was  false — Held,  sufficient  ground  for 
granting  a  new  trial. 


NEW  YORK— FEBKUAEY,   1860. 


Welirkamp  v.  Willet. 


APPEAL  by  plaintiff  from  an  order  made  by  Judge  Hilton  at 
Special  Term,  granting  a  new  trial. 

The  action  was  brought  by  the  plaintiff,  who  is  the  wife  of 
William  C.  Wehrkamp,  against  the  defendant  as  sheriff,  for 
taking  certain  personal  property,  claimed  by  her  to  be  her 
separate  estate,  under  a  judgment  and  execution  against  her 
husband.  The  plaintiff  was  a  witness  in  her  own  behalf,  and 
the  principal  one  to  prove  the  property  to  be  her  separate 
estate.  ...  f> 

The  jury  found  a  verdict  for  the  plaintiff,  assessing  the  value 
of  the  property  at  $600. 

On  the  motion  for  a  new  trial,  the  defendant's  counsel  read 
an  affidavit  setting  forth  that  defendant  was  taken  by  surprise 
by  all  that  part  of  plaintiff's  testimony  relating  to  her  posses- 
sion of  money  in  the  savings  bank,  and  her  ability  to  have 
loaned  money  to  her  husband.  He  also  read  an  affidavit  made 
by  an  accountant  of  the  savings  bank,  alleging  that  the  plain- 
tiff had  no  moneys  in  the  bank  at  the  time  testified  by  her  on 
the  trial  ;  also  an  affidavit  that  this  testimony  was  newly  dis- 
covered. 

The  motion  for  a  new  trial  was  granted.  The  reasons  for 
this  determination  were  stated  in  the  following  opinion  : 

HILTON,  J. — I  think  this  case  falls  within  the  rule  stated  in 
Lister  v.  Mundell  (1  Bos.  &  Pul.  429).  The  Court  there  held 
that,  though  it  was  unusual  to  grant  a  new  trial  on  evidence 
contradicting  the  testimony  on  which  the  verdict  had  pro- 
ceeded, discovered  subsequent  to  the  trial,  yet,  as  the  very 
facts  on  which  the  witnesses  for  the  prevailing  party  had  founded 
themselves  were  falsified  by  the  affidavits  produced  on  the 
motion,  it  afforded  a  sufficient  ground  for  ordering  a  new  trial. 

In  the  present  case,  the  plaintiff  testified  that  she  had  money 
in  the  Bleecker  Street  Savings  Bank  at  the  time  she  bought 
the  carpets  of  Doughty,  and  that  she  checked  out  of  the  bank 
to  pay  him  some  of  his  bills  ;  and  I  think,  also,  the  fair  infer- 
ence from  her  testimony  is,  that  in  December,  1857,  when  her 
husband  borrowed  the  $600  from  Carpenter,  she  had  at  least  that 
amount  in  the  bank,  and  could  have  loaned  it  to  her  husband 
had  she  been  so  disposed,  and  her  evidence,  it  seems  to  me, 


COURT  OF  COMMON  PLEAS. 


Wehrkamp  v.  Willet. 


was  intended  to  create  such  a  belief  in  the  minds  of  the  jury. 
It  certainly  has  that  effect  upon  me. 

It  cannot  be  denied  that  these  were  statements  of  material 
facts,  because  they  showed  her  ability  to  purchase  the  property 
claimed,  with  moneys  of  her  own,  and  independent  of  her  hus- 
band. That  they  were  false  is  beyond  dispute,  as  it  is  shown 
that  her  account  with  the  bank  was  closed  March  13th,  1857, 
by  her  drawing  out  the  entire  balance  then  remaining  to  her 
credit,  and  since  that  time  she  has  had  no  money  there. 

I  think  it  would  be  a  dangerous  precedent  to  permit  a  ver- 
dict to  stand  which  was  predicated  almost  wholly  upon  the 
evidence  of  a  party  in  interest  who  thus  testified.  Marshall 
v.  Union  Ins.  Co.,  2  Wash.  C.  C.  R.,  411 ;  Tuttle  v.  Cooper,  5 
Pick.  414 ;  3  Graham  &  Waterman  on  New  Trials,  1080  ; 
The  People  v.  Superior  Court,  10  Wend.  285.  Motion  for 
new  trial  granted. 

The  plaintiff  appealed  to  the  General  Term. 
C.  Bairibridge  Smith  for  appellant. 

I.  In  the  case  of  Lister  v.  Mundell,  1  Bos.  &  Pul.  429,  upon 
which  the  Judge  relied  in  granting  the  motion,  the  facts   on 
which  the  witnesses  had  founded  themselves  were  shown  to  be 
false.     In  the  case  at  bar,  the  affidavit^,  instead  of  showing  the 
facts  on  which  the  verdict  was  founded  to  be  false,   establish 
that  the  plaintiff  had  a  separate  estate.     The  contradiction,  if 
any,  is  merely  to  a  collateral  fact,  brought  out  by  the   defend- 
ant himself,  and  not  touching  the  point  in  issue. 

II.  To  grant  a  new  trial  on  the  ground  of  newly  discovered 
testimony,  (1.)  The  testimony  must  have  been  discovered  since 
the  former  trial.     (2.)  It  must  appear  that  the  new  testimony 
could  not  have  been  obtained  with  reasonable  diligence  on  the 
former  trial.     (3.)  It  must  be  material  to  the  issue.     (4.)  It 
must  go  to  the  merits  of  the  case,  and  not   to   impeach   the 
character  of  a  former  witness.     (5.)  It  must  not  be  cumulative. 
1  Gra.  &  Wat.  on  New  Trials,  462,  496 ;  JSunn  v.  Hoyt,   3 
Johns.  255  ;  Shumway  v.  Fowler,  4  Id.,  425  ;  Duryee  v.  Den- 
nison,  5  Id.,  248 ;  The  People  v.   The  Superior    Court,   10 
Wend.  285 ;  Harrington  v.  Bigelow,  2  Den.  109  ;  Fleming  v. 
Hollenback,  7  Barb.  271. 


NEW  YOEK— FEBEUAEY,   1860. 


Wehrkamp  v.  Willet. 


III.  The  newly  discovered  testimony  does  not  establish  a 
new  fact.  At  most,  it  contradicts  former  evidence.  In  that 
point  of  view,  the  testimony  is  not  material.  Halsey  v.  Wat- 
son, 1  Caines,  25. 

A.  It.  Dyett,  for  respondent. 

I.  Our  affidavits  show  no   want  of  diligence,  and  make 
out  a  clear  case  of  surprise. 

II.  The  Court  will  not  grant  a  new  trial  to  impeach  a  wit- 
ness,  but  they  will  to  contradict  one,  by  showing  that  the  fact 
he  swore  to  did  not  exist,  which  is  this  case.     Indeed,  here  the 
new  evidence  contradicts  the  party-witness,    and   shows  that 
material  matters  of  fact  sworn  to  by  her  could  not  have  existed 
(the  strongest  sort  of  evidence),  and  that  she  knew  they  were 
false  when  she  uttered  them : — so  that  the  principle — -falsus  in 
unofalsus  in  omnibus — would  entirely  destroy  her  whole  evi- 
dence, without  which  the  defendant  would  be  entitled  to   a 
verdict  as  a  matter  of  law. 

BY  THE  COURT. — HILTON,  J. — We  think  the  fact  whether  the 
plaintiff  had  money  in  the  savings  bank  at  the  time  stated  by 
her  was  material,  and  the  facts  shown  by  the  affidavit,  if 
known  at  the  time,  might  have  produced  a  very  material 
effect  on  the  minds  of  the  jury.  She  was  testifying  to  her  pe- 
cuniary ability,  and,  to  fortify  her  evidence,  referred  to  the 
fact  of  her  having  bought  the  goods  on  credit,  because  she 
wanted  to  secure  the  interest  on  her  money  then  in  the  savings 
bank.  This  circumstance  was  a  material  one  tending  to 
strengthen  her  evidence  with  the  jury,  and  was  denying  a  fact 
upon  which  she  founded  her  statement  respecting  her  ability 
to  purchase  and  pay  for  the  property  in  question. 

How  far  it  influenced  the  jury,  of  course  we  cannot  say,  but 
it  is  a  material  fact  in  the  case,  newly  discovered,  and  falls 
within  the  case  cited  in  the  opinion  at  Special  Term. 

Order  affirmed. 


COURT    OF  COMMON   PLEAS. 


Benedict  v.  The  Ocean  Insurance  Company. 


JESSE  W.  BENEDICT  v.  THE  OCEAN  INSURANCE  COMPANY. 


The  words  "privilege for  $4,500  additional  insurance"  written  in  the  body  of  a 
policy  of  insurance — Held,  to  work  a  waiver  of  a  subsequent  printed  con- 
dition in  the  policy  requiring  notice  to  be  given  to  the  insurers  of  any  other 
insurance  (within  the  sum  specified),  and  to  have  the  same  indorsed  on  the 
policy. 

The  true  intent  and  meaning  is  that  the  insured  may  obtain  further  in- 
surance without  notice  to  the  company,  and  without  affecting  their  policy 
or  their  liability  upon  it,  provided  such  additional  insurance  does  not  exceed 
$4,500. 

Where  it  is  shown  that  the  company  prepared  the  policy  of  insurance  after  a 
careful  examination  of  the  insured  premises  by  their  own  surveyor,  and 
with  a  full  knowledge  of  the  nature  of  the  risk — Held,  that  any  misdescrip- 
tion  of  the  policy  was  the  fault  of  the  company,  and  the  insured  should  not 
be  called  upon  to  bear  the  consequences. 

A  cellar  is  not  one  of  the  "  stories  "  of  a  building. 

Although,  at  the  trial,  evidence  of  certain  admisssions  of  defendant's  agent  may 
have  been  improperly  admitted,  yet  where  it  worked  no  injury  to  the  de- 
fendant, the  action  being  abundantly  sustained  without  it — Held,  that,  on 
appeal,  it  will  be  rejected  as  immaterial  matter',  and  the  objection  and  ex- 
ception to  its  admission  may  be  disregarded. 

APPEAL  by  defendants  from  a  judgment  entered  against 
them  at  Special  Term  in  favor  of  the  plaintiff. 

This  was  an  action  brought  by  the  plaintiff,  as  as  signee  of 
August  Janson,  to  recover  the  loss  by  fire  of  certain  property 
insured  by  the  defendant. 

The  policy  was  dated  the  13th  of  November,  1857,  and  for 
$70  premium  insured  Janson  against  loss  or  damage  by  tire  to 
$2,000 — $1,800  on  his  stock  as  a  cabinet-maker,  and  $:WO  on 
tools  and  benches,  contained  in  the  five-story  brick  building, 
with  tin  roof,  in  the  rear  of  195  and  197  Chrystie-street,  New- 
York. 

On  the  night  of  the  21st  of  January,  1858,  the  buildings 
were  totally  destroyed  by  fire.  The  loss  was  $9,170  84,  of 
which  $7,612  84  was  on  the  stock,  and  $1,558  on  the  tools. 


NEW  YORK— FEBKUABY,  1860. 


Benedict  v.  The  Ocean  Insurance  Company. 


The  policy  contained  this  clause,  specially  written  upon   the 
face  of  the  policy,  at  the  time  the  policy  was  issued: 
"  Privilege  for  $4,500  additional  insurance" 

There  was  exactly-  this  amount  of  additional  insurance, 
namely:  2,000  in  the  Hamilton  Fire  Insurance  Company; 
$2,000  in  the  New  York  and  Erie  Insurance  Company ;  $500 
in  the  Tradesmen's  Insurance  Company. 

In  the  body  of  the  policy  the  following  provision  was 
printed  :  "  And  provided  further,  that  in  case  the  assured  shall 
have  already  made  any  other  insurance  against  loss  by  fire  on 
the  property  hereby  insured,  not  notified  to  this  corporation, 
mentioned  in  or  indorsed  upon  this  policy,  then  this  insurance 
shall  be  void  and  of  no  effect.  And  if  said  insured,  or  his 
assigns,  shall  hereafter  make  any  other  insurance  upon  the 
same  property,  and  shall  not,  with  all  reasonable  diligence, 
give  notice  thereof  to  this  corporation,  and  have  the  same 
indorsed  on  this  instrument,  or  otherwise  acknowledged  by 
them  in.  writing,  this  policy  shall  cease,  and  be  of  no  further 
effect." 

The  cause  was  trie.d  before  Judge  Daly  and  a  jury  on  the 
16th  and  17th  of  December,  1858,  and  a  verdict  rendered  for 
the  plaintiff  for  $2,095  67. 
•   + 

J.  B.  Brinsmade  (Barrett,  Brinsmade  &  Barrett]  for  appel- 
lants. 

1.  The  exception  of  the  appellant  to  the  ruling  of  the  Court 
in  refusing  to  allow  the  appellant  to  show  that  the  respondent 
had  effected  insurance  with  other  companies  without  notice, 
was  well  taken.  (1.)  The  words  in  the  policy,  "  Privilege  for 
$4,500  additional  insurance,"  have  no  effect  to  dispense  with 
the  necessity  of  giving  such  notice.  They  merely  bind  the 
company  not  to  object,  after  notice,  to  the  additional  insurance 
on  account  of  its  coming  up  to  that  sum.  Westlake  v.  St. 
Lawrence  Co.  M.  Ins.  Co.,  14  Barb.  206 ;  JBurt  v.  People's 
M.  Fire  Inn.  Co.,  2  Gray  (Mass.),  397 ;  Forbes  v.  Agawam  M. 
F.  Ins.  Co.,  9  Gush.  (Mass.),  470 ;  Worcester  Bank  v.  Hart- 
ford F.  Ins.  Co.,  11  Gush.  (Mass.),  265 ;  Metten  v.  The  Ham- 
ilton Fire  Ins.  Co.,  17  N.  Y.  (3  Smith),  609 ;  McEwen  v. 


10  COURT    OF  COMMON    PLEAS. 

Benedict  v.  The  Ocean  Insurance  Company. 

i 

Montgomery  Co.  M.  Ins.  Co.,  5  Hill,  104  ;  Potter  v.  The  On- 
tario Mutual  Ins.  Co.,  5  Hill,  147. 

II.  The  Court  should  have  nonsuited  the  respondents  (1.) 
The  description  of  the  building  in  the  policy  was  a  warranty 
that  the  building  should  conform  to  the  description,  and  every 
warranty  is  a  condition  precedent  to  the  plaintiffs  right  of  recov- 
ery. Blair  v.  Loparts,  1  Doug.  11 ;  Pawson  v.  Watson,  2  Cowp. 
785 ;  Craig  v.  U.  S.  Ins.  Co.,  1  Peters'  Cir.  Ct.  Rep.  416  ;  Mel 
v.  Church,  2  John.  Cases,  333 ;  Ogdcn  v.  Ash,  1  Dall.  162;  Fowler 
v.  Etna  Ins.  Co.,  6  Cow.  673  ;  Kennedy  v.  St.  Lawrence  Co.  Mu- 
tual Ins.  Co.,  10  Barb.  285  ;  Wilson  v.  Herkimer  Co.  Mut.  Ins. 
Co.,  2  Selden,  53  \Meadv.  Northwestern  Ins.  Co.,  3  Selden,  530; 
Sillere  v.  Thornton,  26  Eng.  Law  and  Eq.  R.  238.      (2.)  The 
concealment  of  the  facts  that  the  respondent  occupied  the  cellar 
of  the  building  for  the  storage  of  his  goods  was  the  conceal- 
ment of  a  fact  material  to  the  risk,  and  vitiated   the   policy. 
Stebbins  v.  Globe  Ins.  Co.,  2  Hall,  632  ;  Carpenter  v.  American 
Ins.  Co.,  1  Story,  57 ;  Dennison  v.  Thomaston  M.  Ins.  Co.,  2 
App.  125  ;  Ingraham  v.  S.  Carolina  Ins.  Co.,  3  Brevard,  522 ; 
Chitty  on  Contracts,  683.     (3.)  Even  if  it  could  be  assumed  as 
a  fact,  that  the  surveyor  of  the  company  knew  of  the  existence 
of  the  cellar,  and  knew  that  it  was  occupied  for  the  storage  of 
inflammable  materials,  it  could  not  change  the  case,  because 
the  description  of  the  building  in  the  policy  is  a  warranty  ;  and 
notice  to  an  agent  of  the  insurer,  or  even  to  the  insurers  them- 
selves, could  not  relieve  the  insured  from  the  obligations  of  the 
warranty.     Kennedy  v.  St.  Lawrence  Ins.  Co.,  10  Barb.  285 ; 
Lee  v.  Howard  Ins.  Co.,  3  Gray   (Mass.),   583  ;   Jennings  v. 
Chenango  Co.  M.  Ins.  Co.,  2  Denio,  75  ;  Wall  v.  East  River 
Ins.  Co.,  3  Duer,  264. 

III.  The  Court  erred  in  admitting  evidence  of  the  acts  and 
declarations  of  Wilcox.  Where  there  is  a  warranty,  parol  evi- 
dence is  inadmissible  to  affect  the  warranty.  The  rule  which 
prevails  upon  sales  of  property — that  a. warranty  does  not  ex- 
tend to  defects  which  are  known  to  the  purchaser — does  not 
apply  to  warranties  in  contracts  of  insurance.  Kennedy  v.  St. 
Lawrence  Ins.  Co.,  10  Barb.  285 ;  Jennings  v.  Chenango  Ins. 
Co.,  2  Denio,  75 ;  Wall  v.  East  River  Ins.  Co.,  3  Duer,  264  ; 
Lee  v.  Howard  Ins.  Co.,  3  Gray  (Mass.),  583. 


NEW  YORK—FEBRUARY,   1860.  11 

.   • 

Benedict  v.  The  Ocean  Insurance  Company. 

Andrew  Boardman  (Benedict  &  Boardmari)  for   respon- 
dents. 

I.  There  was  no  misdescription  of  the  premises.     (1.)  The 
term  •'  story  "  is  not  applied  to  a  cellar.      "  In   the  United 

,  "  States,  the  floor  next  the  ground  is  the  first  story.  In  France 
."and  England,  the  first  floor  or  story  is  the  second  from  the 
"ground."  (Webster's  Dictionary,  word  "Story.")  (2.)  The 
surveyor  of  the  defendants  went  through  the  building  prior  to 
the  policy  being  issued ;  they  afterwards  furnished  the  policy 
containing  the  description  objected  to.  They  cannot  take  ad- 
vantage of  their  own  act  to  avoid  the  policy. 

II.  The  acts  and  declarations  of  "Wilcox  were  properly  ad- 
mitted in  evidence.     (1.)  They  were  part  of .  the  res  gestce.     (2.) 
They  were  all  prior  to  the  delivery  of  the  policy  by   him    to 
Janson,  on  behalf  of  the  defendants,  and  while  he  was  acting 
as  their  agent.     (3.)  The  admission  of  the  testimony  could  do 
no  legal  injury,  and  even  if  it  were  erroneously  admitted,  the 
exception  would  be  disregarded.     Shorter  v.  The  People,  2  N. 
Y.  193. 

III.  The  "privilege"  granted  by  the  defendant  to  the  insured 
"for  $4,500  additional  insurance"  was  a  waiver  of  that  con- 
dition of  the  policy,  that  if  the  assured   made   any   other  in- 
surance  upon  the  same  property  without  notice  thereof  to 
defendant,  &c.,  the  policy  should  be  of  no  effect.      In   the 
construction  of  a  policy  of  insurance,  the  written  part  is  to  pre- 
vail over  the  printed.     Deling nemare  v.  The  Tradesmen's  Ins. 
Co.,  2  Hall,  622  ;  Harper  v.  The  Albany  Mut.  Ins.  Co.,  17  N. 
Y.  194 ;  Mellen  v.  Hamilton  Fire  Insurance  Co.,  17  N.  Y.  609. 

BY  THE  COURT. — HILTON,  J.,  (orally). — 1.  We  do  not  per- 
ceive how  any  effect  can  be  given  to  the  words  written  by  the 
defendanta  in  the  body  of  the  policy,  except  by  construing 
them  as  a  waiver  of  the  condition  requiring  notice  to  be  given 
to  the  company  of  any  other  insurance  (within  the  sum  speci- 
fied), and  to  have  the  same  indorsed  upon  the  policy.  To  say 
that  it  extended  only  to  waiving  notice  of  the  insurance,  and 
not  to  the  condition  requiring  the  indorsement,  it  seems  to  us 


12  COURT  OF  COMMON  PLEAS. 

» 

Benedict  v.  The  Ocean  Insurance  Company. 

would  be  giving  a  strained  and  unnatural  construction  to  the 
sentence,  and  such  a  one  as  the  parties  never  contemplated. 

"We  think  its  true  meaning  and  intent  to  be  that  the  insured 
might  obtain  further  insurance  without  notice  to  the  company, 
and  without  affecting  their  policy  or  their  liability  upon  it, 
provided  such  additional  insurance  did  not  exceed  $4,500. 

2.  In  connection  with  the  fact  that  the  company  made  out 
the  policy,  it  appears  that  their  surveyor  had  previously  ex- 
amined the  premises  throughout,  and  knew  their  character. 
If,  therefore,  there  was  any  misdescription  in  the  policy,  it  was 
their  fault,  and  the  insured  should  not  be  called  upon  to  bear 
its  consequences. 

But  there  was  no  misdescription.  The  building  was  a  five- 
story  one,  being  that  number  of  floors  above  the  sidewalk,  and 
it  was  so  described  in  the  policy.  But,  assuming  that  there 
was  a  misdescription,  we  think  it  would  be  a  gross  act  of  in- 
justice to  permit  a  company  who,  it  is  shown,  prepared  the 
policy  of  insurance  after  a  careful  examination  of  the  insured 
premises  by  their  own  surveyor,  and  with  a  full  knowledge  of 
the  nature  of  the  risk,  to  avail  itself  of  such  an  error  of  its  own, 
by  which  the  policy  might  be  avoided. 

3.  The  admissions  of  "Wilcox  may  have  been  improperly  ad- 
mitted in  evidence,  and  we  rather  incline  to  the  opinion  that 
they  were  ;  but  they  worked  no  injury  to  the  defendants,  as  the 
action  was  abundantly  sustained  without  them.  Rejecting 
them,  therefore,  as  immaterial  matter,  in  no  way  affecting  the 
conclusion  arrived  at,  it  follows  that  the  objection  and  excep 
tion  to  their  admission  may  be  disregarded. 

Judgment  affirmed. 


NEW  YOEK— MAY,   1860.  13 

Day  v.  The  Orient  Mutual  Insurance  Company. . 


CHARLES  DAT  v.  THE  ORIENT  MUTUAL  INSURANCE  COMPANY. 

Where  in  a  policy  of  insurance,  although  "a  time  policy,"  a  geographical  track 
is  declared,  and  the  insured  is  specifically  prohibited  from  entering  certain 
ports — Held,  that  a  voluntary  voyage  to  any  such  prohibited  port  amounted 
to  a  breach  of  the  warranty  of  the  insured  not  to  enter  such  ports,  and  that 
from  that  time  the  policy  ceased  to  cover  or  protect  the  vessel. 

Held  further,  that  a  permission  to  use  one  of  the  prohibited  ports,  indorsed 
on  the  policy,  did  not  abrogate  the  warranty  in  the  policy  "  not  to  use 
foreign  ports  or  places  in  the  Gulf  of  Mexico." 

Held  further,  that  the  subsequent  return  of  the  vessel  in  safety  in  no  way  re- 
vived or  restored  the  original  obligation  of  the  insurers,  and  no  action  can 
be  maintained  for  her  loss  after  such  deviation. 

APPEAL  by  the  defendants  from  a  judgment  rendered  at 
Special  Term  on  the  verdict  of  injury.  **  A 

The  defendant,  by  a  policy  of  insurance,  insured  one-half  the 
schooner  Allie  Day  for  one  year,  from  26th  March,  1856,  to 
26th  March,  1857,  against  perils  of  the  sea,  &c. ;  the  vessel  was 
valued  at  $10,000.  The  policy  contained  a  warranty  "  not  to 
"  use  ports  or  places  in  Texas,  except  Galveston,  nor  foreign 
"  ports  or  places  in  the  Gulf  of  Mexico."  The  insurance  was 
made  for  the  benefit  of  the  plaintiff,  who  was  owner  of  this 
half  of  the  schooner. 

By  a  subsequent  agreement  added  to  the  policy  on  12th 
April,  1857,  "  for  the  additional  premium  of  one  per  cent,  per- 
"  mission  was  given  to  make  a  voyage  from  New-Orleans  to 
"  Vera  Cruz." 

The  schooner,  under  that  permission,  went  to  Vera  Cruz, 
thence  to  Ooatzacoalcos,  and  returned  in  safety  to  Boston,  and 
thence  to  Apalachicola,  where  she  belonged,  and  was  there  de- 
stroyed by  a  storm — one  of  the  perils  insured  against. 

The  presiding  judge  (DALY,  F.  J.,)  charged  the  jury  in  sub- 
stance as  follows  :  *'  1  shall,  for  the  purposes  of  this  trial,  in- 
Btrnct  you  that  a  deviation  of  the  kind  referred  to  in  the  testi- 
mony will  not  necessarily  avoid  the  policy.  If  the  vessel  re- 
turns into  her  accustomed  track  in  safety,  and  a  loss  afterwards 


14  COUKT  OF  COMMON  PLEAS. 

Day  v.  The  Orient  Mutual  Insurance  Company. 

occurs,  the  insurers  would  still  be  liable  to  pay  such  loss.  That 
the  liability  incurred  by  the  insured  under  a  time  policy,  in 
case  of  a  deviation,  is  the  risk  of  having  to  bear  the  loss  them- 
selves, should  any  occur  during  such  deviation." 

The  defendants'  counsel  duly  excepted,  and  the  Jury,  under 
the  instructions  of  the  Court,  found  as  follows  :  That  the  Allie 
Day  went  to  the  port  of  Coatzacoalcos  in  violation  of  the  war- 
ranty ;  that  she  returned  in  safety,  and  was  destroyed  by  the 
perils  insured  against  at  Apalachicola,  on  31st  August,  1856, 
and,  under  the  instructions  of  the  Court,  rendered  a  verdict  for 
plaintiff  for  $5,811  80 ;  and  the  Court  ordered  judgment  ac- 
cordingly. 

Alexander  Hamilton,  Jr.,  for  appellants. 

I.  The  provision  in  the  policy  "  Warranted  not  to  use  foreign 
"  ports  and  places  in  the  Gulf  of  Mexico,"  is  an  express   war- 
ranty in  fact  as  well  as  in  terms.     Such  a  warranty  as   this  is 
not  in  the  nature  of  an  excepted  or  excluded   risk,  but  is   a 
positive  engagement  on  the  part  of  the  assured,  in  regard  to  an 
act  within  his  own  volition  and  control.      Palmer  v.  Warren 
Ins.  Co.,  1  Story,  360. 

II.  The  law  both  in  England  and  the  United  States  is  well 
settled,  that  an  express  warranty,  being  in  the  nature  of  a  con- 
dition precedent,  must  be  literally  complied  with,  and,  there- 
fore, the  breach  of  it  by  the  assured  avoids  the  contract,    and 
discharges  the  underwriter,  though  the  loss  be  wholly  uncon- 
nected with  such  breach.     Colledge  v.  Harty,  3  Eng.  L.  &  Eq. 
550 ;  Duncan  v.  Sun  fire  Ins.  Co.,  6  Wend.  488  ;  West/all  v. 
Hudson  River  Fire  Ins.   Co.,  2  Duer,   460 ;   12  K  Y.  289 ; 
Mead  v.  Northwestern  Ins.  Co.,  7  N.  Y.  530 ;  De  Hann  v. 
Hartly,    1    Te.rm    Rep.   345 ;   Marshall   on   Insurance,   248 ; 
Lothian  v.  Henderson, 3  Bos.  &  Pul.  515;  1  Arnould  on  Ins. 
580;  1  Phillips  on  Ins.  241. 

III.  The  warranty  and  condition  here  was  that  a  certain  act 
should  not  be  done ;  this  engagement  on  the  part  of  the  assured 
was  a  condition  precedent  with  the  underwriter  in   entering 
upon  the  contract.     The  breach  of  this  engagement  discharges 
the  insurer  from  the  time  of  its  occurrence. 

IY.  The  jury  having  found  that  the  vessel  used  the  forbid- 
den port,  in  violation  of  the  warranty,  this  act  cannot  be  treated 


NEW  YOKE— MAY,    1860.  15 

Day  v.  The  Orient  Mutual  Insurance  Company. 

as  a  deviation.  Had  the  jury  not  so  found,  however,  it  would 
still  not  be  a  deviation ;  and  if  it  were,  would  have  discharged 
the  insurer.  (1.)  A  deviation  cannot  be  predicated  of  a  policy 
on  time.  Union  Insurance  Company  v.  Tysen,  3  Hill,  118. 
(2.)  The  permission  to  use  Yera  Cruz  was  an  exception  only 
from  the  warranty  in  relation  to  Yera  Cruz,  and  left  the  war- 
ranty as  to  other  ports  and  places  in  full  force.  Deviation  is 
a  violation  of  an  "  implied "  condition.  Here  there  was  an 
"  express "  condition  or  warranty  surrounding  the  permitted 
voyage,  and  the  forbidden  act  must  must  be  characterized  by 
the  latter.  (3.)  But,  if  it  were  a  deviation,  the  underwriter  was 
discharged  from  all  liability  on  the  policy  subsequent  to  such 
deviation.  Martin  v.  Delaware  Ins.  Co.,  2  Washn.  C.  0.  254  ; 
Elliot  v.  Wilson,  7  Br.  Pr.  Cases,  459 ;  1  Arnold,  349,  cases 
there  cited. 

Wright  &  Merrihew  for  respondents. 

I.  This  was  a  time  policy — not  one  for  the  voyage.      See 
Union  Ins.  Co.  v.  Tysen,  3  Hill,  118. 

II.  The  deviation  was  temporary,  and  did  not  subsequently 
affect  the  risks  insured  against.     See  Hynds  v.  Schenectady  Co. 
Ins.  Co.,  11  N.  Y.  554 ;  O'Neill  v.  Buffalo  Fire  Ins.    Co.,  3 
N.  Y.  122. 

III.  The  risk  was  temporarily  suspended,  and  reattached  on 
the  return  of  the  vessel  in  safety.     Cowen's   Philips   on  Ins. 
§§  734,  975,  989. 

IY.  There  was  a  waiver  of  this  particular  warranty  by  the 
subsequent  agreement. 

BRADY,  J. — The  policy  upon  which  this  action  was  brought 
was  upon  the  schooner  "  Allie  Day"  for  one  year,  from  the 
26th  March,  1856,  at  noon,  to  March  26th,  1857,  at  noon.  It 
contained  a  warranty  as  follows  :  "  Warranted  not  to  use  ports 
or  places  in  Texas  except  Galveston,  nor  foreign  ports  and 
places  in  the  Gulf  of  Mexico."  By  a  subsequent  agreement, 
April  12,  1857,  for  the  additional  premium,  of  one  per  cent, 
permission  was  given  to  make  a  voyage  from  New  Orleans  to 
Yera  Cruz.  The  schooner  went  to  Yera  Cruz,  thence  to  Coat- 
zacoalcos,  in  the  Gulf  of  Mexico,  thence  to  Boston,  and  thence 


16  COURT  OF  COMMON  PLEAS. 

Day  v.  The  Orient  Mutual  Insurance  Company. 

to  Apalachicola,  where  she  belonged,  and  was  there  destroyed 
by  a  storm.  The  plaintiff  claims  to  recover  because  the  policy 
was  a  time  policy,  and  the  deviation  occasioned  by  the  voyage 
to  Coatzacoalcos  was  only  temporary,  and  did  not  subse- 
quently affect  the  risks  insured  against.  For  the  first  of  these 
propositions  we  are  referred  to  the  case  of  The  Union  Ins.  Co. 
v.  Tysen,  3  Hill,  118  ;  bat  COWEN,  J.,  states  in  the  beginning 
of  the  opinion,  "It  is  in  the  nature  of  the  policy  in  question, 
that  it  limits  the  vessel  to  no  geographical  track.  It  is  impos- 
sible, therefore,  to  make  out  a  defence  on  the  ground  of  a  de- 
viation in  the  ordinary  sense  of  the  word."  But  assuming  the 
policy  in  question  to  be  a  time  policy,  the  geographical  track 
is  declared,  and  the  voyage  to  Coatzacoalcos  was  a  deviation 
and  in  violation  of  the  warranty.  The  question  which  arises 
upon  these  facts  is  whether  the  defendants  are  discharged  by 
the  deviation.  There  was  no  necessity  for  the  deviation.  It 
was  voluntary,  and  discharged  the  underwriters.  Their  dis- 
charge does  not  depend  upon  any  supposed  increase  of  risk, 
but  wholly  on  the  departure  of  the  insured  from  the  contract 
of  insurance.  The  assured  has  no  right  to  substitute  a  dif- 
ferent risk.  1  Phillips  on  Ins.  983 ;  Robinson  y.  Marine  Ins. 
Co.,  2  Johns.  Rep.  89  ;  Huet  v.  The  Phoenix  Ins.  Co.,  7  Johns. 
Rep.  363 ;  Robertson  v.  The  Col.  Ins.  Co.,  8  Johns.  491 ; 
Duncan  v.  Sun  Fire  Ins.  Co.,  6  Wend.  48 S  ;  Maryland  Ins. 
Co.  v.  Le  Roy,  7  Cranch,  26  ;  Hentley  v.  Buggin,  2  Doug.  39 ; 
Child  v.  Sun  Mut.  Ins,  Co.,  3  Sandford,  26 ;  Kettel  v.  Wiggin, 
13  Mass.  68 ;  Coffin  v.  Newburyport  Mar.  Ins.  Co.,  9  Mass. 
436 ;  449. 

In  the  case  of  Robertson  v.  The  Columbian  Ins.  Co.,  supra, 
the  brig  Ohio  was  insured  from  New  York  to  the  island  of 
Teneriffe,  and,  for  an  additional  premium  of  two  per  cent,  per- 
mission was  given  to  proceed  from  Teneriffe  to  the  Isle  of  May 
and  Bonavista,  and  at  and  from  thence  to  return  to  New  York. 
The  vessel  arrived  safely  at  Teneriffe,  but  was  refused  per- 
mission to  enter  or  land  any  part  of  her  cargo  until  after  per- 
forming a  quarantine  of  forty  days,  because  her  bill  of  health 
was  not  certified  by  the  Spanish  Consul  at  New- York.  The 
master,  being  unable  to  land  her  cargo,  determined  to  seek 
another  port,  and  went  to  Madeira,  which  was  the  nearest 
port,  where  he  arrived,  landed  and  sold  the  cargo.  The  vessel 


NEW  YORK— MAY,  1860.  IT 

Day  v.  The  Orient  Mutual  Insurance  Company. 


afterwards  proceeded  to  the  Isle  of  May,  and  sailed  from 
thence  to  New  York.  During  her  passage  she  met  with  very 
bad  weather,  which  much  injured  her,  and  sustained  further 
injury  by  striking  on  a  shoal  near  Great  Egg  Harbor,  and 
finally  awived  at  New  York.  Per  curiam;  "There  was  no 
necessity  for  going  from  Teneriffe  to  Madeira.  It  was  sailing 
on  a  different  voyage  from  the  one  insured."  "  It  was  a  vol- 
untary deviation  from  the  voyage  mentioned  in  the  policy. 
Nothing  but  necessity  or  apprehension  of  danger  could  excuse 
his  departure  from  the  usual  and  direct  route  to  Bonavista." 

The  judgment  should  be  reversed. 

HILTON,  J. — Coatzacoalcos  was  one  of  the  prohibited  ports 
mentioned  in  the  policy,  and  the  plaintiff  in  express  terms 
warranted  against  its  use.  The  voyage  there  was  voluntary, 
after  the  defendants  had  positively  refused  permission  to  go, 
and  had  accompanied  the  refusal  with  an  offer  to  cancel  the 
policy  and  return  the  premium  for  the  time  unexpired,  so  that 
insurance  miglit  have  been  obtained  elsewhere.  But  notwith- 
standing all  this,  the  voyage  was  made,  and  there  cannot  be 
the  slightest  doubt  that  had  the  vessel  been  lost  while  absent 
upon  it,  the  defendants  would  not  have  been  answerable;  and 
it  is  equally  clear,  both  on  principle  and  authority,  that  going 
upon  it  was  a  plain  breach  of  the  warranty  contained  in  the 
policy,  and  put  an  end  to  the  liability  of  the  defendants  as  un- 
derwriters. Kettel  v.  Wiggin,  15  Mass.  68. 

In  contracts  of  insurance  a  warranty  is  regarded  as  very 
much  like  a  condition  precedent,  and  which,  if  violated,  avoids 
the  policy,  and  no  recovery  can  thereafter  be  had  upon  it. 
Mead  v.  Northwestern  Ins.  Co.  3  Selden,  530  ;  Duncan  v.  Sun 
Fire  Ins.  Co.,  6  Wend.  488;  49±;  Wtstfall  v.  Hudson  Elver 
Fire  Ins.  Co.,  2  Kern.  289.  In  the  language  of  Mr.  Justice 
Johnson,  in  Maryland  Ins.  Co.  v.  Le  Roy  (7  Cranch,  26), 
"  The  discharge  of  the  underwriters  from  their  liability  in  such 
cases  depends  not  upon  any  supposed  increase  of  risk,  but 
wholly  on  the  departure  of  the  insured  from  the  policy  of  in- 
surance." The  law  attaches  no  importance  to  the  degree  of 
such  violation,  or  the  consequences  arising  from  it^  and  its 
materiality  or  immateriality  signifies  nothing,  the  only  qucs- 
2 


18  COURT    OF  COMMON    PLEAS. 

Day  v.  The  Orient  Mutual  Insurance  Company. 

tion  being  as  to  the  fact  of  the  violation,  and  when  that  is 
shown  a  recovery  is  precluded.  De  Hahn  v.  Hardy,  1  Term 
R.  343  ;  Kemble  v.  RKimlander,  3  John.  Cases,  134 ;  Phillips 
on  Ins.  181;  211. 

From  these  views  it  follows  that  going  to  Coatzacoalcos  be- 
ing a  clear  breach  of  the  warranty,  from  that  time  the  policy 
ceased  to  cover  or  protect  the  vessel,  and  her  subsequent  re- 
turn in  no  way  revived  or  restored  the  defendants'  original 
obligation  as  underwriters.  Westfdll  v.  Hudson  River  Fire 
Ins.  Co.,  2  Dner,  490 ;  496.  . 

I  therefore  concur  with  Judge  Brady,  that  the  defendants 
are  entitled  to  judgment,  and  as  the  deviation  is  conceded,  the 
judgment  should  be  a  final  one  in  their  favor. 

DALY,  F.  J.,  concurred. 


DAVID  R.  SMITH  v.  THOMAS  R.  FERRIS. 

A  party  is  not  concluded  by  everything  he  may  have  said  or  done,  even  under 
oath.  The  doctrine  of  estoppel  is  confined  within  just  and  rational  limits 
and  a  party  is  not  estopped  unless  he  has  gained  some  benefit  or  advantage 
>>y  the  act  which  is  relied  upon  as  an  estoppel,  or  unless,  by  that  act,  the 
party  claiming  the  benefit  of  the  estoppel  was  induced  to  alter  his  con- 
dition. 

Thus,  where  the  plaintiff  filed  notice  of  an  ineffectual  mechanic's  Hen, 
wherein  he  swore  that  the  contract  was  made  with  the  contractor — Held, 
that  in  an  action  against  the  owner,  the  plaintiff  was  not  estopped  from 
showing  that  such  contract  Was  in  reality  made  with  the  defendant,  as 
owner. 

The  record  of  a  dismissal  of  the  complaint  between  the  same  parties  in 
another  court,  for  the  purpose  of  proving  a  former  adjudication,  is  inadmis- 
sible in  evidence,  unless  it  is  shown  that  such  dismissal  was  a  judicial  do- 
termination  of  the  same  point  in  controversy  here. 

To  entitle  a  written  contract  between  one  of  the  parties  and  a  third  person  to 
be  admitted  in  evidence,  its  pertinency  must  be  first  shown. 

The  defendant  on  the  trial  testified  that  he  had  had  no  other  conversation 


NEW  YORK— MAY,  1860.  19 

Smith  v.  Ferris. 

with  the  plaintiff,  than  that  sworn  to  by  him.  He  then  put  in  evidence  a  cer- 
tain mechanics'  lien  proceeding,  and  rested.  The  plaintiff  was  recalled,  and 
testified  that  he  had  had  another  conversation  than  that  testified  to  by  the 
defendant ;  and  then  detailed  such  conversation  relative  to  the  mechanics' 
lien  proceeding.  The  defendant  offered  himself  as  a  witness  to  contradict  the 
plaintiffs  version  of  such  conversation,  which  offer  the  justice  refused.  Held, 
error.  The  testimony  proposed  by  the  defendant  was  not  to  contradict  his 
own  previous  testimony,  but  to  obviate  the  effect  of  plaintiffs  testimony  as  to 
the  lien  proceeding. 

A  contractor  failed  to  complete  his  contract,  and  the  owner  was  compelled  to 
complete  the  building.  In  an  action  by  a  sub-contractor  against  the  owner 
for  work  and  materials,  for  which  a  lien  had  been  filed — Held,  that  the 
defendant  might  prove  on  the  trial  what  it  had  actually  cost  him  to  com- 
plete the  building,  for  the  purpose  of  showing  that  nothing  was  due  to  the 
contractor,  and,  consequently,  nothing  due  to  the  plaintiff,  as  sub-contractor. 

APPEAL  by  the  defendant  from  a  judgment  of  the  Fifth  Dis- 
trict Court. 

The  action  was  brought  to  recover  for  work,  labor,  and  ma 
terials,  done  and  furnished  by  the  plaintiff  to  the  defendant,  at 
his  special  instance  and  request.  The  answer  denied  that  the 
plaintiff  did  the  work  at  the  instance  und  request  of  the  de- 
fendant, and  alleged  that  the  work  was  done,  and  materials 
furnished  by  the  plaintiff,  under  a  contract  with  one  Gaylor,  a 
contractor  with  the  defendant ;  and  set  up  as  separate  defences 
— 1st.  A  former  judgment  rendered  in  the  Marine  Court 
against  the  plaintiff  in  an  action  between  the  same  parties  for 
the  same  cause.  2d.  An  estoppel  created  by  the  filing  of  a 
mechanics'  lien  by  plaintiff  as  a  sub  contractor,  for  the  same 
demand,  against  Gaylor,  the  contractor. 

The  case  was  tried  before  Justice  Charles  K.  Smith  and  a 
jury. 

After  the  plaintiff  had  rested  his  case,  and  the  defendant 
had  adduced  considerable  evidence,  among  other  things 
swearing  that  he  had  had  but  one  conversation  with  the  plain- 
tiff, lie  put  in  evidence  the  mechanics'  lien  papers,  which  the 
plaintiff  had  tiled  against  Gaylor,  the  contractor,  wherein,  under 
oath,  the  plaintiff  declared  that  the  work  and  labor  performed, 
and  materials  furnished,  had  been  done  in  pursuance  of  a 
contract  made  by  him  with  Gaylor  as  contractor,  &c. 

Defendant  then  rested. 


20  COURT    OF  COMMON    PLEAS.  • 

Smith  v.  Ferris 

The  plaintiff  was  re-called,  and  testified  that  the  notice 
of  lien  was  filed  at  the  request  of  the  defendant ;  that  defend- 
ant said  to  the  plaintiff,  that  for  his,  defendant's,  protection  as 
against  Gaylor,  he  wanted  plaintiff  first  to  put  a  lien  on  the 
building,  against  Gaylor  as  contractor,  and  defendant  as  own- 
er; that  the  plaintiff  complied  with  this  request,  and  filed  the 
lien ;  that  after  filing  the  lien,  the  defendant  refused  to  pay 
the  plaintiff,  saying  to  him  that  by  such  filing  he  had  pre- 
vented recovery  against  him,  the  defendant,  and  that  he  must 
get  his  money  the  best  he  could. 

The  defendant  offered  himself  as  a  witness  to  contradict  the 
plaintiff's  testimony  as  to  such  last  conversation,  which  the 
justice  refused.  The  defendant  also  offered  himself  as  a  wit- 
ness to  prove  how  much  it  cost  him  to  complete  the  contract- 
or's abandoned  contract,  and  the  justice  refused  the  offer. 

The  jury  rendered  a  verdict  for  the  plaintiff,  and  judgment 
was  entered  accordingly.  Defendant  now  appeals  to  this 
Court. 

Samuel  Jones  for  appellant. 

John  S.  Parsons  (Man  &  Parsons)  for  respondent. 

BY  THE  COITRT. — DALY,  F.  J.- — The  plaintiff  was  not  estopped 
by  the  affidavit  tiled  with  the  notice  of  lien,  from  proving  the 
fact  to  be  otherwise  than  as  stated  in  the  affidavit.  The  King 
v.  Clark,  8  T.  R.  220  ;  Hart  v.  Newman,  3  Camp.  13  ;  Gilles 
v.  Watson,  2  Stark  K.  453 ';  Hearn  v.  Rogers,  9  B.  &  C.  577 ; 
Boileau  v.  Rutlin,  2  Excheq.  665  ;  Ring  v.  Franklin,  2  Hall, 
1 ;  Wesion  v.  Perriman,  I  Mason,  306.  A  party  is  not  con- 
cluded by  every  thing  he  may  have  said  or  done,  even  under 
oath.  The  doctrine  of  estoppel,  to  prevent  the  abuses  or  in- 
justice that  might  otherwise  arise,  is  confined  within  just  and 
rational  limits,  and  a  party  is  not  estopped  unless  he  has 
gained  some  benefit  or  advantage  by  the  act  which  is  relied 
upon  as  an  estoppel  (freeman  v.  Walker,  6  Greenleaf  R.  68), 
or  unless  by  that  act,  the  party  claiming  the  benefit  of  the 
estoppel  was  induced  to  alter  his  condition.  1  Greenleaf's  Ev. 
§§  27,  207.  The  plaintiff  obtained  no  benefit  or  advantage  07 
the  filing  and  service  of  the  notice  of  lien,  as  there  was  nothing, 
from  the  defendant's  own  showing,  to  which  it  could  attach, 
and  it  did  not  appear  that  the  defendant  acted  upon,  or  was  in 


NEW  YORK— MAT,  1860.  21 


Smith  v.  Ferris. 


any  way  prejudiced  by  the  proceeding.  The  affidavit,  as  the 
sworn  statement  of  the  plaintiff,  was,  as  an  admission,  of  very 
great  weight,  but  it  was  not  conclusive  against  him  by  way  of 
estoppel.  In  the  case  to  which  we  are  referred,  (Butler  v. 
Miller^  1  Comst.  503)  the  estoppel  lay  in  the  judicial  determi- 
nation of  a  proceeding  to  which  the  plaintiff,  the  sheriff,  and 
the  other  execution  creditors  were  parties.  As  the  plaintiff 
moved  the  Court  to  compdl  the  sheriff  to  apply  the  proceeds 
of  the  sale  vof  the  property  to  their  execution,  and  the  Court 
having  adjudged  that  the  sheriff  should  pay  it  to  the  other  ex- 
ecution creditors,  the  plaintiff  was  estopped  from  claiming  the 
property  from  the  sheriff  as  mortgagees — and  so  in  this  case, 
if  there  had  been  a  judgment  in  the  lien  proceedings,  that 
judgment  might  be  invoked  by  the  defendant,  by  way  of 
estoppel. 

The  record  of  the  dismissal  of  the  complaint  between  the 
same  parties  in  the  Marine  Court,  was  inadmissible  unless  tho 
defendant  was  prepared  to  show  that  that  dismissal  was  a  judi- 
cial determination  of  the  same  point  that  was  in  controversy 
here  (Morewood  v.  Out.rarn,  3  East,  346),  and  his  offer  did  not 
go  that  length.  He  offered  to  prove  that  the  complaint  was 
dismissed  after  the  defendant  had  given  evidence  and  had 
rested  his  case.  But  this  was  not  enough.  For  all  that  ap- 
peared in  such  an  offor,  the  suit  may  have  related  to  a  totally 
different  matter. 

When  the  contract  between  Gaylor  and  the  defendant  was 
offered,  there  was  nothing  to  show  its  pertinency.  It  was 
inter  alias  acta.  Wlun  the  lien  proceeding  was  shown,  it 
might,  in  connection  with  the  plaintiff's  affidavit,  have  been 
admissible,  but  the  offer  was  n<>t  then  renewed. 

The  judgment  must  be  reversed  for  another  reason,  but  I 
have  passed  upon  these  questions  as  they  may  arise  again,  if 
the  plaintiff  should  renew  his  suit.  After  the  lieu  proceedings 
were  given  in  evidence,  which  was  certainly  evidence  of  the 
strongest  kind  against  the  claim  which  the  plaintiff  set  up,  the 
plaintiff  and  another  witness  were  allowed  to  show  that  the 
defendant  told  the  plaintiff  to  put  on  a  lien  against  him  as 
owner,  and  Gaylor  as  contractor ;  that  as  soon  as  he  had  done 
that,  he  would  pay  him  the  next  day  ;  but  that  when  he  hand- 
ed the  defendant  the  copy  of  the  notice  of  lien,  he  told  him 


22  COUKT  OF  COMMON  PLEAS.   ' 

Smith  v.  Ferris. 

that  if  there  were  forty  thousand  of  them,  they  would  not  get  a 
cent.  When  this  testimony  was  given,  the  defendant  offered 
himself  as  a  witness  to  contradict  what  was  there  sworn  to  by 
the  plaintiff  and  the  witness  Sherwood  ;  but  the  justice,  for 
what  reason  it  would  be  difficult  to  conceive,  refused  to  allow 
him  to  testify.  It  was  suggested  on  the  argument  that  the  tes- 
timony proposed  to  be  given  by  the  defendant  was  not  rebut- 
ting, as  the  defendant  had  previously  sworn  that  he  had  no 
other  conversation  with  the  plaintiff  than  the  one  testified  to 
by  himself  and  the  witnesses  Fraser  and  Weeks,  and  that  the 
conversation  about  the  lien  was  not  therefore  rebutting  to  the 
plaintiff's  testimony.  But  this  testimony  on  the  part  of  the 
defendant  was  necessary  only  after  the  lien  proceedings  were 
put  in  evidence,  and  it  was  given  not  to  contradict  the  previ- 
ous testimony  of  the  defendant,  but  to  obviate  the  effect  of  the 
plaintiff's  affidavit.  In  that  affidavit,  he  had  sworn  that  the 
claim  for  which  he  now  brought  the  action,  was  against  the 
defendant  as  owner,  and  Gaylor  as  contractor,  on  account  of 
workidone  and  materials  furnished,  in  pursuance  of  a  contract 
made  with  Gaylor,  which  was  directly  in  conflict  with  what 
he  had  previously  sworn  to,  to  maintain  this  action  against  the 
defendant.  It  was  testimony  therefore  given  to  sustain  his 
own  case,  and  testimony  of  a  very  suspicious  and  dangerous 
character.  It  was  admitting  that  he  had  deliberately  sworn  to 
what  he  knew  to  be  false,  upon  the  promise  of  the  defendant 
to  pay  him — whereas,  if  he  had,  as  he  testified  upon  the 
trial,  made  his  contract  with  the  defendant,  there  was  no  occa- 
sion to  rely  upon  such  a  promise,  as  he  could  put  on  a  lien 
against  the  defendant  at  once,  and  thereby  secure  his  debt. 
There  was  his  own  uncontradicted  statement  to  the  defendant, 
and  the  witnesses  Fraser  and  Weeks,  that  he  did  not  like  to 
do  the  work  for  Gaylor,  as  he  did  not  think  he  got  money 
enough,  but  if  the  defendant  would  secure  him  upon  the  last 
payment,  he  would  like  to  do  the  work  and  put  on  a  lien — and 
the  uncontradicted  statement  of  the  defendant  that  that  pay- 
ment never  became  due,  as  Gaylor  abandoned  the  work,  and 
the  defendant  had  to  complete  the  building  himself.  The 
plaintiff  moreover  was  supported  in  the  account  he  gave  of  the 
conversation  about  the  lien,  by  a  witness  standing  precisely  in 
the  same  position  as  himself,  claiming  to  have  filed  a  lien  at 


NEW  YORK— MAY,  1860.  23 


Baker  v.  Bourcicault. 


the  defendant's  inducement,  as  the  plaintiff  had  done,  when 
his  contract  in  fact  was  made  with  the  defendant.  As  the 
justice  would  not  allow  the  defendant  to  show  what  it  actually 
cost  him  to  complete  the  building,  and  afterwards  refused  to 
allow  him  to  contradict  the  statements  of  the  plaintiff  and 
Sherwood,  his  position  before  the  jury  was  seriously  preju- 
diced, and  great  injustice  was  done  him. 
The  judgment  should  be  reversed. 


PETER  C.  BAKES  AND  DANIEL  GODWIN  v.  DION  BOUKCICAULT. 


It  is  a  general  principle  that  when  goods  are  ordered  to  be  sent  by  a  carrier, 
a  delivery  to  the  carrier  operates  as  a  delivery  to  the  purchaser,  in.  whom 
the  title  immediately  vests,  subject  to  the  vendor's  right  of  stoppage  in 
t ransitu  ;  and  the  goods,  in  the  course  of  transit,  are  at  the  risk  of  the  pur- 
chaser. 

But  where  it  is  apparent,  from  the  circumstances  under  which  the  delivery 
was  made,  that  the  vendor  did  not  trust  to  the  ability  or  readiness  of  the 
purchaser  to  perform  his  contract,  and  intended  to  insist  upon  strict  pre- 
payment as  a  condition  of  delivery  by  the  carrier — Held,  that  such  delivery 
by  the  vendor  to  the  carrier,  is  not  within  the  general  rule,  and  does  not 
operate  to  pass  title. 

The  defendant  ordered  certain  goods  of  the  plaintiffs,  and  left  it  at  their  option 
whether  he  should  send  the  amount  of  their  bill  by  return  of  post,  or 
whether  it  should  be  collected  by  the  express  company,  on  delivery.  The 
plaintiffs  sent  the  goods,  by  express  company,  with  directions  to  collect  upon 
delivery.  The  vessel  by  which  the  goods  were  shipped  was  lost  at  sea — 
Held,  1.  That  payment  and  delivery  were  intended  to  be  simultaneous  acts, 
and  until  such  payment  and  delivery,  the  title  remained  in  the  vendor,  the 
contract  being  merely  executory. 

2.  That,  consequently,  the  goods  were,  while  in  the  course  of  transit,  at  the 
risk  of  the  vendor ;  and,  being  lost,  no  action  would  lie  against  the  vendee 
for  the  contract  price. 

8  It  makes  no  difference  that  the  goods  were  sent  by  a  particular  carrier 
named  by  the  vendee.  By  such  delivvy  and  instructions  to  the  carrier,  the 
yendor  made  him  his  own  agent 


24:  COUKT  OF  COMMON  PLEAS. 

Baker  v.  Bourcicault. 

APPEAL  by  defendant  from  a  judgment  of  the  Marine  Court 
at  General  Term. 

The  defendant,  who  was  the  proprietor  of  the  Goiety  Thea- 
tre, at  New  Orleans,  wrote  to  the  plaintiffs  from  Louisville, 
Ky.,  ordering  them  to  print,  frame,  and  glaze  a  certain  num- 
ber of  cards,  and  directed  that  they  should  be  dispatched  by 
the  earliest  express  to  him  at  New  Orleans,  adding,  u  I  will 
either  send  you  back  the  amount  by  return  of  post,  or  the  ex- 
press may  collect  the  same  for  you,  at  your  option  ;"  the  de- 
fendant to  be  advised  of  the  departure  of  the  cards  by  letter. 

The  plaintiffs  delivered  the  cards  to  Adams  Express  Com- 
pany, with  a  bill,  and  directions  1o  collect  the  bill  on  delivery. 
The  direction  on  the  goods  was,  "Dion  Bourcicault,  Gaiety  The- 
atre, New  Orleans,  La. — C.  O.  D."  The  goods  were  sent  by 
the  steamer  Crescent  City,  Dec.  3,  1855 ;  the  steamer  was 
lost  at  sea;  the  defendant  never  received  the  cards. 

The  plaintiffs  testified  on  the  trial  that  they  complied  with 
the  direction  of  the  order  by  writing  to  the  defendant,  enclos- 
ing their  bill. 

Defendant  testified  that  he  never  received  such  letter  or  bill. 
Defendant's  counsel  asked  the  Court  to  decide  that  the  plain- 
tiffs were  not  entitled  to  recover — 1st.  Because  they  had  not, 
in  point  of  time,  complied  with  the  direction  of  the  order,  but 
had  taken  too  much  time  in  the  execution  of  the  order.  2d. 
Because  the  goods,  at  the  time  of  their  loss  on  the  Crescent 
City,  were  at  the  risk  of  plaintiffs — were  their  property,  and 
had  never  been  delivered  to  the  defendant,  so  as  to  place  them 
at  his  risk,  and  the  goods  delivered,  having  been  lost  before 
such  a  delivery  to  the  defendant,  and  whilst  they  were  at  the 
risk  of  and  the  property  of  the  plaintiffs,  the  loss  was  the 
plaintiffs',  and  they  ^fcl•e  not  entitled  to  recover  anything  on 
account  thereof  from  the  defendant. 

The  Court  refused  so  to  decide,  but  rendered  judgment  for 
the  plaintiffs  for  $172.89,  to  which  decision  the  defendant  ex- 
cepted. 

Henry  A.  C/'am  for  appellant. 

I.  The  delivery  to  the  Express  Company  of  the  goods,  and  a 
bill  with  directions  not  to  deliver  to  the  defendant  until  payment 
of  the  bill,  did  not  pass  the  title,  but  the  goods  remained  the 


NEW  YOKE— MAY,  1860.  25 


Bilker  v.  Bourcicault. 


property  of  and  at  the  risk  of  the  plaintiffs  ;  the  Express  Com- 
pany were  the  agents  of  the  plaintiffs,  and  not  of  the  defend- 
ant. In  People  v.  Haynes  (14  Wend.  546),  the  carrier  had  been 
designated  by  the  purchaser,  and  there  was  no  appointment  of 
the  carrier,  the  agent  of  the  seller,  or  direction  to  the  carrier 
not  to  deliver  until  the  bill  was  paid ;  and  the  purchaser  was 
personally  present,  and  received  and  accepted  the  goods.  These 
are  vital  distinctions,  and  in  that  case,  the  Chancellor  laid  down 
the  position  that  the  seller,  having  the  right  of  stoppage  in 
transitu,  could  have  reinvested  themselves  with  the  title  to  the 
goods  by  a  notice  to  the  carrier  ;  it  follows,  plainly,  that  the 
notice  given  in  this  case,  at  the  time  of  delivery,  to  the  carrier 
would  have  a  similar  effect.  See  Newcomb  v.  Cramer,  9  Barb. 
402  ;  and  Jones  v.  Bradner,  10  Barb.  193  ;  Story  on  Sales, 
§  223  to  §  238,  §§  302,  305,  and  §  315. 

II.  Independent  of  the  last  point,  the  title  would  not  pass 
until  a  bill  was  sent  by  letter  to  the  defendant,  that  being  one 
of  the  express  conditions  of  the  order. 

Benjamin  Vaughan  Abbott  (Abbott  Brothers)  for  respon- 
dents. 

I.  The  action  is  not  for  goods  sold  and   delivered,  but  for 
labor  and  materials  furnished.      The  plaintiffs  were  employed 
to  perform  the  labor  of  printing  the  cards,  they  furnishing  the 
requisite  materials, — of  packing  them, — and  of  putting  them 
on  board  the  Express.    On  proof  that  these  services  were  fully 
performed,  they  were  entitled  to  recover  as  for  labor  and  ma- 
terials.    Sewall  v.  Fitch,  8  Cow.  215  :  Itobertson  v.   Vaughn, 
5  Sandf.  1 ;  and  see  Bronson  v.  Wiman,  ]0  Barb.  406,  aflTd  4 
Seld.    182 ;    Crookshank  v.  Burrell,   18  Johns,  58.      And  al- 
though in  such  case,  if  there  is  a  tender  of  the  goods  to  the 
defendant  in  person,  and  «t  refusal  to  receive,  the  plaintiff  must, 
perhaps,  declare  ou  the  refusal  to  accept  ;  yet  if  the  defendant 
has  directed  the  goods  to  be  sent  to  him  by  a  carrier,  delivery 
to  the  currier  is  sufficient  to  satisfy  the  contract,  and  to  charge 
defendant.     Downer   v.    Thompson,  2   Hill,  137  \  Hague  v. 
Porter,  3  Hill,  141. 

II.  Even  regarding  the  contract  as  one  for   the  sale  of 
goods,  still  they  were  at  defendant's  risk  after  delivery  to  the 


26  COUKT  OF  COMMON  PLEAS. 

Baker  v.  Bourcicault. 

Express.  The  rule  is  well  settled,  that  where  goods  sold  are  to  be 
forwarded  by  a  carrier,  delivery  to  the  carrier  is  equivalent  to 
a  delivery  to  the  purchaser ;  and  the  property,  with  the  corres- 
pondent ri*k,  immediately  vests  in  the  purchaser,  subject  to 
the  vendor's  right  of  stoppage  in  transit.  People  v.  TIaynes, 
14  Wend.  f>46  ;  Dutton  v.  Sdomonson,  3  Bos.  &  P.  582  ;  Vale 
v.  Bayle,  Cowp.  294 ;  Cooke  v.  Ludlow,  5  Bos.  &  P.,  119  ; 
Richardson  v.  Dunn,  1  Gale  &  D.  417  ;  Studdy  v.  Saunders, 
5  Barn.  &  Cress.  628,  S.  C.  8  Dowl.  &  R.  403  ;  Tarling  v. 
Bagster,  6  Barn.  &  C.  360 ;  S.  C.  8  .Dowl.  &  R.  282  ;  King  v. 
Meredith,  2  Campb.  639  ;  Benedict  v.  Field,  16  N.  Y.  599  ;  1 
Parsons  on  Contr.  445  ;  2  Kent's  Comm.  645. 
•  III.  The  cases  cited  byf  defendant,  Van  Nest  v.  Conover, 
8  Barb.  509  ;  Newcomb  v.  Cramer,  9  Id.  402  ;  Jones  v.  Brad- 
ner,  10  Id.  193  ; — as  showing  that  the  property  does  not  pass 
by  delivery  to  a  carrier,  are  neither  of  them  in  point.  They 
are  cases  in  which  the  vendor's  right  of  lien  or  stoppage  was 
asserted  and  sustained,  notwithstanding  the  delivery  to  the 
carrier ;  not  cases  in  which  the  property  was  held  at  vendor's 
risk  while  in  transit. 

BY  THE  COURT. — DALY,  F.  J.— The  defendant  informed  the 
plaintiffs  that  he  would  send  back  the  amount  of  their  bill  by 
return  of  post,  or  the  Express  Company  might  collect  it,  at 
their  option.  The  plaintiffs  sent  the  box  containing  the  cards 
to  the  Express  Company,  with  directions  to  collect  the  bill  on 
delivery.  It  is  to  be  implied  from  such  a  direction  that  no 
credit  had  been  given,  and  that  the  goods  were  to  be  paid  for 
on  delivery.  The  direction  was  understood  by  the  Express 
Company  as  an  instruction  to  them  not  to  deliver  the  goods 
unless  the  bill  was  paid.  The  agent  of  the  Express  Company, 
•who  received  the  box  and  gave  a  receipt  for  it,  testified  that 
when  they  receive  goods  in  that  way,  they  do  not  deliver  them 
unless  the  bill  is  paid.  The  receipt'was  for  a  box  and  a  bill, 
and  had  written  upon  it,  in  the  handwriting  of  the  witness,  the 
initials  C.  O.  D.,  the  meaning  of  which,  he  testified,  was,  "  col- 
lect on  delivery." 

When  goods  are  sent  in  this  way,  to  be  paid  for  in  cash,  pay- 
ment and  delivery  are  simultaneous  acts,  and  though  the  pro- 
perty be  delivered,  no  title  passes,  unless  it  is  apparent  from 
the  circumstances  under  which  the  delivery  was  made,  that 


NEW  YORK— MAY,   1860.  27 


Baker  v.  Bourcicault. 


the  vendor  meant  to  trust  to  the  ability  and  readiness  of  the 
vendee  to  perform  his  agreement,  and  did  not  intend  to  insist 
upon  strict  payment  as  a  condition  precedent  to  the  passing  of 
the  title.  Unless  immediate  payment  is  thus  waived,  the  ven- 
dor may,  by  an  action  for  a  wrongful  detention,  reclaim  the 
property,  as  his  title  in  it  is  not  divested  until  payment. 
•  This  rule,  the  soundness  of  which  has  been  questioned  per 
Story,  J.  in  Connyer  v.  Ennis,  2  Mason,  236,  is  now  settled 
to  be  the  law  in  this  State,  (Russell  v.  Minor,  22  Wend.  659  ; 
Lupin  v.  Marie,  6  id.  77  ;  Chapman  v.  Lathrop,  6  Cow.  115  ; 
Keeler  v.  field,  1  Paige,  312  ;  Haggerty  v.  Palmer,  6  John. 
0.  R.  437 ;  Palmer  v.  Hand,  13  Johns.  E.  434)  and  it  is  de- 
cisive upon  the  question  arising  in  this  case. 

There  is  nothing  to  show  that  the  plaintiffs  intended  to 
waive  payment  as  a  condition  precedent  to  the  transfer  of  the 
title  in  the  goods  to  the  defendant,  but  on  the  contrary,  the 
circumstances  of  the  case,  I  think,  repel  such  a  presumption. 
The  defendant  left  it  at  their  option  whether  he  should  send 
back  the  amount  of  their  bill  by  return  of  post,  or  whether  it 
should  be  collected  by  the  Express  Company.  They  chose  the 
latter,  and  directed  the  Express  Company  to  collect  it  upon 
delivery.  This  was  certainly  not  indicating  any  intention  to 
trust  to  the  ability  and  readiness  of  the  defendant — but  if  any 
thing  is  inferrable  from  it,  it  is  the  contrary.  The  Express 
Company  understood  it  as  a  direction  to  them  not  to  deliver 
unless  the  cash  was  paid  ;  and  had  the  goods  reached  New- 
Orleans,  they  would  have  kept  them  as  the  property  of  the 
plaintiffs.  The  Express  Company  would  have  had  no  author- 
ity to  deliver  the  goods  relying  upon  the  ability  of  the  de- 
fendant, and  waiving  payment — or,  if  they  had  delivered  the 
box  to  him,  to  enable  him  to  examine  the  contents,  to  see  if 
his  order  had  been  properly  executed,  they,  or  certainly  the 
plaintiffs,  conld  have  reckuined  it,  if  the  defendant  had  failed 
to  pay  the  bill  when  it  was  demanded.  In  GoodnH  v.  Skilton, 
(2  II.  Bl.  316),  the  plaintiff  agreed  to  sell  a  quantity  of  wool  to 
the  defendant.  Earnest  was  paid,  rendering  the  contract  valid 
under  the  statute  of  frauds.  The  wool  was  packed  in  the  de- 
fendant's sacks  and  left  upon  the  plaintiff's  premises,  the  de- 
fendant agreeing  to  send  his  wngon  for  it  in  a  few  days.  The 
defendant  did  not  take  the  wool,  and  the  plaintiff  brought  an 


28  COURT  OF  COMMON  PLEAS. 

Baker  v.  Bourcicault. 

action  for  goods  sold  and  delivered;  but  as  it  appeared  that 
the  plaintiff  had  told  the  defendant's   servant,  while  he   was 
engaged  in  weighing  and  packing  the  wool,  upon  the  la  tier's 
proposing  to  fix  the  time  when  the  wagon  should  come,  that 
the  wool  should  not  go  off  his  premises  until  he  had  the  money 
for  it,  the  Court  held  that  the  action  would  not  lie,  the  plain- 
tiff having  retained  his  right  over  the  wool,  and  there  being 
no  right  to  it  in  the  defendant.     The  numerous  cases  cited  by 
the  respondent,  (People  v.  Haynes,  14  Wend.  546  ;  Dutlon  v. 
Solomonson,  3  Bos.  &  Pul.  582  ;  Cooke  v.  Ludlow,  5  id.  119  ; 
Vale  v.  Bayle,  Cowp.  294  ;  Studdy  v.  Saunders,  5  B.  &  C.  628; 
Tailing  v.  Baxter,  6  id.  360  ;  Richardson  v.  Dunn,  IT.  &  D. 
417;  King  v.  Meredith,  2  Camp.  639)  merely   establish  the 
general  principle,  that  when  goods  are  ordered  to  be  sent  by  a 
carrier,  a  delivery  to  the  carrier  operates  as  a  delivery  tor  the 
purchaser,  in  whom  the  property  immediately  vests,  subject  to 
the  vendor's  right  of  stoppage  in  transitu,  and  the  goods,  in  the 
course  of  their  transit,  are  at  the  risk  of  the   purchaser.     But 
every  general  rule  has  its  qualifications.      In   none   of  these 
cases  does  it  appear  that  the  goods  were  to  be  paid  for  in  cash 
upon  delivery,  and  that  makes  a  very  material  difference,  as 
it  shows,  unless  the  contrary  is  indicated,  that  the  property  is 
not  >to  pass  until  payment  has  been  made.     Up   to   the  time 
when  payment  and  delivery  are  to  be  simultaneous  acts,  the 
contract  is  in  its  nature  executory,  and  the  title  to  the  proper- 
ty is  in  the  vendor.      Benedict  v.  Field,   16   N.  Y.  596.     It 
makes  no  difference  that  the  goods  have  been  sent  by  a  par- 
ticular carrier  named  by  the  vendee,  if  the  carrier  is  instruct- 
ed by  the  vendor  that  the  goods  are  to  be  paid  for  on  deliv- 
ery.    In  such  a  case  the  carrier  becomes  the  agent  of  the  ven- 
dor, and  has  a  claim  upon  him  for  the  expense  of  the  carriage 
and  safe  keeping  of  the  goods,  if  the  vendee  refuse  to  pay  on 
delivery.     Such  was  the  relation  of  the  parties   in   this  suit, 
when  the  box  was  lost  by  the  loss  of  the  vessel  in  which  it  was 
shipped,  on  her  way  to  New  Orleans.     The  title  to  the  goods 
had  not  passed  to  the  defendant,   and  the  judgment  of  the 
Court  below  was  erroneous. 
Judgment  reversed. 

HILTON,  J.  concurred. 
BRADY,  J.  concurred. 


NEW   YOKE—MAY,   1860.  29 


Lester  v.  Christalar. 


ANDREW  LESTER  v.  ALEXANDER  M.  CHRISTALAR. 

The  insolvent  laws  of  a  State  cannot  affect  a  creditor  residing  out  of  the  State, 
at  the  time  of  the  application  for  the  discharge,  who  does  not  participate  in 
the  proceedings  under  such  laws,  even  though  his  debt  be  a  judgment  re- 
covered within  such  State. 

And  a  resident  of  this  State,  by  an  assignment  to  him  of  such  judgment,  after 
that  discharge,  acquires  a  valid  and  subsisting  interest,  which  is  not  affected 
by  the  discharge. 

Whether  a  judgment  recovered  in  this  State  is  a  contract  made  or  to  be  exe- 
cuted in  this  State  within  the  meaning  of  the  insolvent  law — Query. 

The  facts  appear  from  the  opinion  of  the  Court. 

BY  THE  COURT. — DALY,  F.  J. — "When  the  judgment  was  re- 
versed, Kirkland,  Mansfield  &  Hall,  the  plaintiffs,  were  non- 
residents of  this  State,  and  at  the  time  of  the  first  publication 
of  the  defendant's  application  to  be  discharged  from  his  debts 
as  an  insolvent,  Mansfield  was  dead,  Kirkland  was  a  resident 
of  the  State  of  Ohio,  and  Hall  was  a  resident  of  the  State  of 
Pennsj'lvania,  and  neither  of  the  plaintiffs  in  the  judgment 
united  with  the  defendant  in  his  application  for  a  discharge, 
nor  did  either  of  them  accept  any  dividend  from  his  estate. 
The  statute  declares  that  the  discharge  shall  exonerate  the  in- 
solvent from  debts  founded  upon  contracts  made  within  or  to 
be  executed  within  the  State,  or  debts  owing  to  persons  resi- 
dent within  the  State  at  the  time  of  the  first  publication  of  the 
notice  of  the  insolvent's  application,  or  persons  not  residing 
within  tin's  State  who  have  united  in  his  petition  or  who  shall 
accept  a  dividend  from  his  estate. 

As  the  plaintiffs  in  the  judgment  did  not  reside  in  this  State 
nor  unite  in  the  defendant's  petition,  nor  accept  any  dividend 
from  his  estate,  it  is  very  clear  that  they  are  not  embraced  in 
either  of  these  three  latter  provisions.  It  is  suggested,  how- 
ever, that  the  judgment  was  a  contract  made  within  or  to  be 
executed  within  this  State,  and  that  it  comes  within  the  pre- 
vious provisions.  It  does  not  appear  for  what  the  judgment 
was  rendered,  and  we  cannot  say  whether  the  debt  or  obliga- 
tion which  the  law  implies  from  the  existence  of  the  judgment 
had  its  foundation  in  contract  or  not.  In  a  certain  sense  a 


30  COURT  OF  COMMON  PLEAS. 

Lester  v.  Christalar. 

judgment  is  to  be  deemed  a  contract.  "  "Whatever,"  says 
Blackstone,  "  the  law  orders  any  one  to  pay,  that  becomes  in- 
stantly a  debt  which  he  hath  beforehand  contracted  to  dis- 
charge." 3  Bl.  Com.  158.  I  think  it  is  at  least  very  doubtful 
whether  the  contract  implied  from  the  existence  of  a  judg- 
ment, is  contemplated  by  t!ie  statute  when  it  refers  to  a  con- 
tract made  or  to  be  executed  in  this  State.  But  it  is  not  ne- 
cessary to  pass  upon  that  question,  for  the  defendant's  dis- 
charge would  not  affect  a  debt  due  to  persons  who  were  not 
residents  of  this  State,  when  he  made  his  application  and  ob- 
tained his  discharge.  It  is  now  well  settled  that  the  insolvent 
laws  of  a  State  have  no  extra  territorial  effect,  and  will  not 
operate  to  discharge  a  debt  due  to  creditors  who  are  not  with- 
in its  jurisdiction,  unless  they  participated  in  the  proceedings, 
either  by  uniting  in  the  application  for  the  insolvent's  dis- 
charge, or  by  accepting  a  dividend  from  his  estate.  Ogden  v. 
Sounders,  12  Wheaton,  213;  Sturges  v.  Crowningstdeld,  4  id. 
122 ;  McMillan  v.  McNeill,  4  id.  209  ;  Hinckley  v.  Mareau, 
5  Mason,  80  ;  Clap  v.  Smith,  3  Peters,  411  ;  Boyle  v.  Zacha- 
rue,  6  id.  348  ;  Clay  v.  Moffat,  5  How.  295.  0  The  fact  that 
Kirkland,  Mansfield  &  Hill  resorted  to  the  Courts  of  this 
State,  and  obtained  a  judgment  upon  their  claims  against  the 
defendant,  was  not  such  a  submission  or  assent  to  the  jurisdic- 
ti6n  of  this  State  as  to  entitle  it  to  release,  by  a  discharge  un- 
der its  insolvent  laws,  the  debt  or  obligation  created  by  the 
judgment.  This  point  was  expressly  determined  in  Watson 
v.  Bourne,  10  Mass.  337.  Justice  Johnson,  in  Ogden  v.  Saun- 
ders,  supra,  questioned  the  soundness  of  this  decision,  and 
thought  that  there  was  little  doubt  but  that  the  decision  was 
wrong;  but  the  same  question  came  up  for  adjudication  in 
this  Court  in  Donnelly  v.  Corbett,  afterwards  affirmed  in  the 
Court  of  Appeals,  3  Seld.  500  ;  and  though  great  respect  was- 
due  to  the  doubts  expressed  by  so  eminent  a  Judge  as  Justice 
Johnson,  this  Court  after  mature  deliberation,  decided  in  con- 
formity with  the  decision  of  the  Supreme  Court  of  Massachu- 
setts. The  point  was  directly  involved,  and  the  conclusion  we 
arrived  at  was  essential  to  support  the  judgment  we  rendered. 
The  plaintiff,  a  resident  of  this  State,  sued  the  defendant  Cor- 
bett, a  resident  of  South  Carolina,  in  tlie  Courts  of. South  Car- 
olina, upon  a  contract  made  in  this  State,  but  which  was  to  be 


NEW  YOEK— MAY,  1860.  31 


Lester  v.  Christalar. 


performed  in  South  Carolina.  Having  obtained  a  judgment,  a 
ca.  sa.  was  issued,  upon  which  Corbett  was  imprisoned — and 
while  in  custody,  he  petitioned,  as  debtors  charged  in  execu- 
tion are  entitled  to  do  by  the  laws  of  that  State,  for  a  general 
discharge  from  his  debts,  upon  his  surrendering  up  all  his  pro- 
perty for  the  benefit  of  his  creditors,  which  discharge  was 
granted.  The  plaintiff  afterwards  attached  property  belong- 
ing to  Corbett  in  this  State,  and  upon  a  bond  given  by  him  to 
release  the  attachment,  an  action  was  brought  in  this  Court. 
We  held  that  the  discharge  under  the  insolvent  laws  of  South 
Carolina  was  no  answer  to  the  action  ;  that  so  far  as  these 
laws  discharged? him  from  imprisonment,  they  affected  the  rem- 
edy only  and  were  valid,  but  that  so  far  as  they  undertook  to 
release  or  discharge  the  debt  they  were  unconstitutional  and 
void,  and  that  no  assent  on  the  part  of  the  plaintiff  to  the  in- 
solvent law  of  South  Carolina,  nor  waiver  of  his  constitutional 
immunity,  could  be  implied  from  his  bringing  an  action  in  that 
State,  to  enforce  the  payment  of  his  debt.  Upon  all  these  pro- 
positions, the  judgment  of  this  Court  was  sustained  by  the 
Court  of  Appeals.  The  decision  of  Justice  Bronson  in  the  case 
of  Parkinson  v.  Scovill  (19  Wend.  150),  to  which  our  attention 
has  been  called,  was  before  us  when  our  decision  was  rendered, 
but  we  declined  to  follow  it,  as  it  was  in  conflict  with  the  de- 
cision of  the  Supreme  Court  of  the  United  States.  In  Don- 
nelly v.  Corbett,  the  debt  was  contracted  in  this  State,  so  that 
the  only  distinction  between  that  case  and  the  present  is  that 
then  the  insolvent's  discharge  of  another  State  was  pleaded 
in  bar,  while  here  the  discharge  was  granted  under  the  laws 
of  our  State ;  but  that  makes  no  difference.  It  was  ex- 
pressly decided  in  Clay  v.  Moffatt  (5  How.  295),  that  where 
the  Courts  of  the  United  States  have  declared  a  State  law  to 
be  in  conflict  with  the  Constitution,  and  therefor  declared  void, 
the  State  tribunals  are  bound  to  conform  to  such  decision  ;  that 
an  insolvent  law  which  comes  within  this  category  cannot  be 
pleaded  as  a  discharge,  even  in  the  forum  of  the  State  which 
enacted  it,  for  that  a  State  cannot  inflict  its  insolvent  laws  on 
contracts  and  persons  not  within  its  limits. 

As  the  judgment  remained  iff  full  force,  and  had  never  been 
released  by  the  discharge  granted  to  the  defendant,  the  plain- 
tiff in  this  action,  though  a  citizen  of  this  State,  could  and  did 


32  COUKT  OF  COMMON  PLEAS. 

Myer  v.  Jacobs. 

acquire  by  the  assignment,  a  valid  and  subsisting  interest  in  it. 
This  disposes  of  all  the  questions  that  have  been  discussed. 
The  report  of  the  referee  should  be  affirmed.  . 


THEODORE  A.  MYER  v.  ABRAHAM  S.  JACOBS. 

In  general,  a  factor  has  a  lien  for  his  general  balance  on  the  property  of  his 
principal  coming  into  his  hands. 

A  commission  merchant  advanced  money  to  his  principal  on  his  indorsement, 
and  charged  the  note,  upon  which  the  advance  was  made,  in  his  general 
account — Held,  that  the  mere  charging  of  the  note  to  the  principal  did  not 
entitle  the  latter  to  its  possession.  The  agent  had  a  right  to  retain  it  as  his 
principal's  property,  until  he  was  paid  the  balance  of  his  general  account 
arising  in  the  course  of  their  dealings. 

APPEAL  by  the  defendant  from  a  judgment  in  the  Third  Dis- 
trict Court.  The  facts  are  fully  stated  in  the  opinion  of  the 
Court. 

E.  A.  UAmoureux  for  appellant. 
Cornelius  A.  Runlde  for  respondent. 

BY  THE  COURT. — HILTON,  J. — It  appears  that  the  plaintiff 
employed  the  defendant  to  sell  merchandise  consigned  to  him, 
upon  commission.  During  this  employment,  the  defendant 
advanced  to  the  plaintiff  the  amount  of  the  note  in  respect  to 
which  this  action  is  brought.  The  note  was  indorsed  by  the 
plaintiff,  and,  not  being  paid  at  maturity,  it  was  with  his  appa- 
rent assent — certainly  without  objection  on  his  part — charged 
to  their  general  account. 

The  plaintiff  insists  that  thus  charging  the  note  to  him,  made 
it  his  property,  and  he  was  entitled  to  it  without  reference  to 
the  state  of  their  account ;  while  on  the  contrary,  the  defend- 
ant claims  that  he  has  a  right  to  retain  the  note  until  he  is 
paid  the  general  balance  due  him  from  the  plaintiff. 

The   Justice  seems  to  have  regarded  the  charging  of  the 


YORK— MAY,  1860. 


Myer  v.  Jacobs. 


note  to  the  plaintiff  as  entitling  him  to  its  possession,  and 
therefore  ruled  out  all  evidence  showing  that  there  was  an 
actual  balance  of  accounts  admitted  by  the  plaintiff  to  be  due 
to  the  defendant,  arising  out  of  his  factorage,  and  also  that 
the  defendant  offered  to  deliver  up  the  note  upon  being  paid 
this  balance. 

This  was  erroneous.  The  defendant  as  agent  or  factor  had 
a  lien  upon  the  note,  and  also  on  the  judgment  which  seems  to 
have  been  upon  it.  These  constituted  property  which  came 
into  his  hands  in  the  course  of  his  dealings  with  the  plaintiff, 
and  which  he  was  entitled  to  retain  until  he  was  paid  the  bal- 
ance of  his  general  account  arising  in  the  course  of  those  deal- 
ings. Rnizer  v.  Wilcox,  Amb.  252 ;  Godin  y.  London  Assur- 
ance Co.,  1  Burr,  494 ;  2  Kent.  Com.  640  ;  Knapp  v.  Alvord, 
10  Paige,  205 ;  Bruce  v.  Brooks,  26  Wend.  367 ;  Parson's 
Mercantile  Law,  161 ;  1  Parsons  on  Contracts,  84;  Walker  v. 
Birch,  6  Term  R.  262.  In  the  latter  case,  Lord  Kenyon  said,. 
"  There  is  no  doubt,  and,  indeed,  the  point  has  been  so  long 
settled,  that  it  ought  not  now  to  be  brought  into  dispute,  but 
that,  in  general,  a  factor  has  a  lien  for  his  general  balance  on 
the  property  of  his  principal  coming  into  his  hands ;"  and  in 
1  Burr.  494  (supra},  Lord  Mansfield  held  that  this  lien  at- 
tached to  a  policy  of  insurance  in  the  hands  of  a  factor,  upon 
goods  consigned  to  him  by  his  principal. 

Here,  the  account  shows  that  the  balance  -which'  the  defend- 
ant claims  was  caused  by  charging  the  note  in  it,  and  yet  the 
plaintiff  seeks  by  this  action  to  have  the  benefits-  of  tho'  charge, 
while  he  refuses  to  pay  the  balance  which  it  creates.  Tlus  he 
should  not  be  permitted  to  do. 

Judgment  reversed 


34  COUKT  OF  COMMON  PLEAS. 


Dean  v.  Cannon. 


WILLIAM  H.  DEAN  v.  GEOKGE  L.  CANNON. 


The  statute  is  imperative,  that  when  it  appears  upon  the  trial,  in  a  District 
Court,  that  the  plaintiff  is  not  a  resident,  and  has  filed  no  security,  the  com- 
plaint must  be  dismissed. 

And  it  does  not  alter  the  rule,  that  the  fact  of  non-residence  and  failure  to  file 
security  appear,  for  the  first  time,  upon  a  new  trial,  ordered  by  the  appellate 
Court. 

An  order  for  a  new  trial  imposes  no  duty  on  the  Court  below,  inconsistent 
with,  or  restrictive  of,  any  of  its  powers.  The.  case  is  to  be  heard  and  de- 
cided, on  a  new  trial,  in  the  same  manner  as  if  the  trial  were  an  original  one. 


APPEAL  by  defendant  from  a  judgment  rendered  in  the  First 
District  Court. 

The  plaintiff  brought  action  against  the  defendant  as  indorser 
of  a  bill  of  exchange.  On  the  return  day  mentioned  in  the 
summons,  the  defendant  did  not  appear,  and  plaintiff  took 
judgment  by  default  for  amount  claimed,  interest  and  costs. 
The  defendant  appealed  to  the  Court  of  Common  Pleas ;  the 
j  udgrnent  was  reversed,  and  it  was  ordered  that  "  a  new  trial 
be  had  before  the  Justice  of  the  First  Judicial  District  Court, 
on  the  19th  day  of  February,  1859,  at  10  o'clock,  A.M." 

In  pursuance  of  such  order,  the  cause  came  on  for  trial  before 
such  justice  and  a  jury.  Plaintiff's  counsel  admitted  that  the 
plaintiff  was  a  non-resident,  and  had  not,  filed  security  for  costs. 
The  defendant's  counsel  thereupon  moved  for  a  dismissal  of  the 
complaint. 

The  Justice  denied  the  motion,  on  the  ground  that  the  case 
was  before  him  in  pursuance  of  the  order  of  the  Court  of  Com- 
mon Pleas. 

The  jury,  after  being  charged  by  the  Justice,  among  other 
things,  that  the  plaintiff  was  properly  in  Court,  returned  with  a 
verdict  for  the  plaintiff. 

The  defendant  then  appealed  to  this  Court. 


NEW  YOKE— MAY,   1860.  35 

Caiy  v.  Thompson. 

Pike  dk  Galpin  for  appellants. 
Tyler  &  Brown  for  respondents. 

BRADY,  J. — The  judgment  must  be  reversed.  The  plaintiff 
was  a  non-resident,  and  did  not  file  security  for  costs.  Hallen- 
\eck  v.  Gillies,  7  Abb.  Pr.  Kep.  421. 

The  Justice  declined  to  dismiss  the  action  on  the  ground 
that  the  cause  was  sent  back  by  this  Court  for  a  new  trial, 
seeming  to  regard  it  as  a  duty  to  dispose  of  the  case  on  its 
merits  tor  that  reason.  A  new  trial  was  ordered  by  this  Court, 
because  the  defendant  failed  to  appear,  and  alleged  a  defence 
on  the  merits.  The  order  for  a  new  trial  imposed  no  duty  up- 
on the  Court  below,  inconsistent  with  or  restrictive  of  any  of 
its  powers.  The  case  was  to  be  heard  and  decided,  although  it 
was  sent  back,  in  the  same  manner  as  though  it  had  been  an 
original  one.  The  statute  is  imperative.  When  it  appears  at 
the  trial  that  the  plaintiff  is  not  a  resident,  and  has  not  given  se- 
curity (Hallenbeck  v.  Gillies,  supra),  the  Justice  must  dismiss 
the  complaint.  These  facts  did  not  appear  at  the  trial,  and 
were  not  controlled  in  their  legal  effect  by  any  order  of  this 
Court. 

Judgment  reversed. 


JOHN  G.  CAET  v.  MAJOB  THOMPSON. 


A  conveyance,  in  general  terms,  of  a  bouse,  passes  everything  that  belongs  to 
the  house  with  it,  and  whether  a  thing  is  parcel  or  not,  of  the  thing  demised, 
is  always  matter  of  evidence. 

The  plaintiff,  by  a  sealed  lease,  rented  to  defendant  two  houses,  describing 
them  as  "  NOB.  162  and  164  Seventh  Avenue" — Held,  that  parol  evidence  was 
admissible  to  show  that  a  certain  rear  yard  or  lot  passed  with  the  demise  of 
the  two  houses. 

As  a  general  rule,  parol  evidence  is  always  admissible  to  ascertain  the  nature 
and  qualities  of  the  subject  to  which  an  instrument  refers. 


36  COUKT  OF  COMMON  PLEAS. 

Cary  v.  Thompson. 

And  when  evidence  was  excluded  which  tended  to  show  that  it  was  the  under- 
standing of  both  parties,  when  the  lease  was  executed,  that  the  second  or 
rear  yards  were  intended  to  be,  and  were  embraced  in  it— Held,  error,  and  a 
new  trial  will  be  ordered. 


APPEAL  by  plaintiff  from  a  judgment  of  non-suit,  entered  at 
Special  Term,  by  Judge  BEADY. 

The  plaintiff,  in  his  complaint,  alleged  the  leasing  to  him  by 
the  defendant  lor  a  term  of  three  years,  two  houses  in  Seventh 
Avenue,  New  York  City,  with  the  yards,  premises  and  appurte- 
nances, and  that  the  defendant  (the  lessor)  in  the  mouth  of  June, 
1857,  while  plaintiff  was  in  possession,  "wrongfully,  unlawfully, 
and  without  the  consent  of  the  plaintiff,  and  against  his  wish, 
entered  upon  a  part  of  said  premises  and  wrongfully  and  un- 
lawfully took  and  converted  about  twenty  feet  deep  from  the 
rear  part  of  said  two  yards  to  his,  the  defendant's,  own  use,  and 
without  the  consent  of  the  plaintiff,  and  still  so  retains  the 
same.  And  also  then  and  there  wrongfully  took  and  carried 
away,  and  converted  to  his  own  use  certain  sheds,  woodhouses, 
and  outhouses  belonging  to  the  said  plaintiff,  and  situated  upon 
said  premises,  of  the  value  of  about  fifty  dollars,  and  in- 
jured the  privies  and  other  outhouses  belonging  to  the  said 
plaintiffs  said  premises,  all  without  the  consent  and  against 
the  wish  of  the  plaintiff." 

The  defendant,  in  his  answer,  denied  that  the  part  of  the 
yards  so  taken  possession  of  by  him  was  embraced  in  the  lease, 
or  that  he  .had  ever  leased  them  to  plaintiff. 

Qn  the  trial,  the  counsel  for  the  plaintiff  proposed  and  of- 
fered to  prove  "  that  the  plaintiff  before  he  leased  the  premi- 
ses of  the  defendant,  and  about  the  first  of  April,  1856,  exam- 
ined said  premises  and  yards  in  company  with  said  defendant, 
and  that  said  defendant  then  and  there  pointed  out  the  wood- 
houses  in  the  second  or  rear  yard  aforesaid,  as  the  place  used 
by  the  tenants  and  occupants  of  the  dwelling  houses  de- 
scribed in  the  aforesaid  lease,  as  and  for  their  woodhouses  and 
as  the  yards  used  by  said  tenants  and  occupants  of  said  dwell- 
ing houses  for  hanging  up  and  drying  their  clothes." 

The  defendant  objected,  and  the  Court  sustained  the  objec- 
tion, and  excluded  the  testimony. 


NEW  YORK— MAY,   1860.  37 

Gary  v.  Thompson. 

The  counsel  for  the  plain  tiff  then  proposed  to  prove  that  in 
the  month  of  June,  1857,  the  defendant  took  possession  of  both 
of  said  rear  yards,  and  tore  down  all  of  said  woodhouses,  and 
kept  the  possession  of  said  rear  yards  to  himself  wholly  from 
that  time  down  to  the  time  of  the  commencement  of  this  ac- 
tion. f 

The  defendant's  counsel  objected,  and  the  Court  sustained 
the  objection. 

On  motion,  the  Court  non-suited  the  plaintiff,  and  dismissed 
his  complaint. 

The  plaintiff  appealed  to  the  general  term. 

John  C.  Dimmick,  for  appellant,  contended  that  the  testi- 
mony offered  by  the  plaintiff  should  have  been  admitted,  and 
cited  Greenleaf  on  Eo.  §  286  ;  Freeland  v.  Bart,  1  T.  R. 
701 ;  Bacon's  Abr  Tit.  Grant. 

Andrew  Boardman  for  respondent. 

I.  The  word  house,  in  its  most  comprehensive  signification, 
means  a  residence,  and  whatever  is  adjoining  thereto,  enclosed 
in  the  same  fence  ;  that  is,  the  dwelling-house  and  curtilage. 
Daniel  v.  Coulxting,  7  Manning  &  Granger,  125  ;  Chitty^s  Gen- 
eral Practice,  175  ;  2  Hill'iard's  Real  Property,  543.     In  this 
case,  the  houses  were  designated  by  numbers   162   and   164 
Seventh  avenue.      The  plot  of  land  in   dispute  was  an  open 
space  in  the  rear  of  houses  162,  164  and  166,  into  which  there 
was  an  opening  from  each  yard  attached  to  those  houses.  That 
space  could  not  be  assigned  as  part  of  any  one  of  the  lots 
known  by  those  numbers,  nor  of  any  two  of  them.      If  it  was 
appurtenant  to  any,  it  was  appurtenant  to  all ;  but  the  houses 
let  to  the  plaintiff  were  let  to  him  exclusively ;  nothing  used  or 
to  be  used  in  common  with  others  was  included  in  the  lease.  It 
is  clear,  therefore,  that  this  open  space  was  not  let  to  him. 

II.  The  written  instrument  being  free  from  ambiguity,  pa- 
rol  evidence  of  its  meaning  was  inadmissible. 

BY  THE  COCKT. — DALY,  F.  J. — I  think  the  evidence  ex- 
cluded was  competent.  The  lease  was  of  the  two  house*  known 
as  Kos.  162  and  164  Seventh  avenue.  It  is  said  in  Bacon's 


38  COURT  OF  COMMON  PLEAS. 

Cary  v.  Thompson. 

Abridgment  (Title  Grant,  1,  3),  that  the  grant  of  a  house  pas- 
ses the  curtilage,  and  a  curtilage  is  a  court  yard,  back  side,  or 
piece  of  ground  laying  near,  belonging  to  a  dwelling-honse 
(Tomlim's  Law  Dictionary),  and  in  Garden  v.  Tuck  (Cro. 
Eliz.  89),  it  was  held  that  in  the  devise  of  a  messuage,  the  gar- 
den and  curtilage  passed.  The  question  in  the  present  case 
was  whether  the  back  yard  or  rear  part  of  the  lot  passed  with 
the  demise  of  the  two  houses.  Three  houses  were  erected  by 
the  defendant  on  the  two  lots.  They  were  what  is  termed,  in 
this  City,  tenement  houses,  and  the  plaintiff  leased  the  two 
southerly  ones.  In  the  rear  of  each  of  the  houses  was  a  small 
yard,  extending  back  about  twelve  feet,  and  running  across  the 
whole  width  of  each  lot,  and  in  the  rear  of  this  again  was  an- 
other yard,  extending  back  about  twenty  feet,  and  extending 
across  the  width  of  the  lots.  In  the  first  yards  the  privies  were 
placed ;  in  the  second,  there  were  woodhouses  and  posts  for 
clothes  lines,  and  there  was  an  open  entrance  or  passage  way 
between  the  first  and  second  yards.  The  plaintiff  offered  to 
show  that  before  he  leased  the  premises,  the  defendant  pointed 
out  to  him  the  woodhouses  in  the  second  yard  as  used  by  the 
tenants  or  occupants  of  the  houses  which  he  afterwards  leased  ; 
that  after  he  took  possession,  he  repaired  the  woodhouses  ;  that 
the  defendant  saw  him  making  the  repairs,  and  that  he  asked 
the  defendant  to  make  him  some  allowance,  which  the  defend- 
ant declined,  saying,  that  the  woodhouses  would  not  be  of 
much  value  at  the  end  of  the  plaintiff's  lease,  which  was  for 
three  years,  with  the  privilege  of  a  renewal.  The  plaintiff  also 
offered  to  show  that  thirteen  months  after  the  demise,  the  de- 
fendant took  possession  of  the  rear  yards,  tore  down  the 
woodhouses,  and  kept  possession  of  them  wholly  from  that 
time.  All  that  was  thus  offered  was  excluded,  and  the  plain- 
tiff's complaint  was  dismissed.  The  evidence  was  competent 
to  show  what  was  intended  to  pass  by  the  demise  of  the  houses. 
In  a  conveyance  like  this,  in  general  terms,  of  a  house,  every 
thing  that  belongs  to  it  passes  with  it,  and  whether  a  thing  is 
u  parcel  or  not  of  the  thing  demised,  is,"  says  Buller,  J.,  in 
Doe  v.  Burt  (1  T.  R.  704),  "  always  matter  of  evidence  ;"  and 
in  that  case  parol  evidence  was  admitted,  to  show  that  the  pai- 
ties  could  not  have  intended  to  embrace  in  the  lease,  a  cellar 
situated  under  the  yard  which  was  demised.  As  a  general 


NEW  YORK— MAY,    I860.  39 

Wells  v.  De  Leyer. 

rule,  parol  evidence  is  always  admissible  in  order  to  ascertain 
the  nature  and  qualities  of  the  subject  to  which  an  instrument 
refers  (Crreenleaf's  Emdence,  §  286).  The  evidence  excluded 
tended  to  show  that  it  was  the  understanding  of  both  parties, 
when  the  lease  was  executed,  that  the  second  or'  rear  yards  in 
which  the  wood  houses  were  placed,  were  intended  to  be,  and 
were,  embraced  in  it ;  and  if  such  was  the  fact,  the  defendant 
was  a  trespasser,  and  the  action  was  well  brought. 

Judgment  reversed  and  new  trial  ordered ;   costs  to  abide 
event. 


BENJAMIN  W.  WELLS,    Administrator,  doc.  v.  ANTHONY  DE 

LEYER. 

Where  a  lease  contains  a  covenant  for  renewal  upon  a  rent  to  be  fixed  by  ar- 
bitrators, and  the  covenant  is  silent  as  to  the  time  when  such  arbitrators 
shall  be  appointed,  the  covenant  will  be  construed  to  mean  that  they  shall 
be  appointed  a  reasonable  time  before  the  expiration  of  the  lease. 

A  lessee,  under  such  a  covenant,  having  been  notified  that  the  lessor  had  ap- 
pointed an  abitrator,  and  been  required  to  appoint  one  on  his  own  behalf, 
before  the  expiration  of  the  lease,  and  having  failed  to  do  so,has,  at  the  option 
of  the  lessor,  waived  his  right  to  such  renewal ;  and  the  landlord  having 
given  the  lessee  notice  that  he  should  require  him  to  pay  a  rent  of  $200 — 
this  was  held  a  new  letting  from  year  to  year,  and  not  a  renewal  of  the  for- 
mer lease.  4 

THIS  was  an  appeal  from  a  judgment  of  this  Court,  entered 
upon  a  decision  of  Judge  Brady,  without  a  jury.  The  complaint 
set  up  damages  for  the  unlawful  ejectment  of  the  plaintiff  from 
certain  premises  owned  by  the  plaintiffs  intestate  in  fee.  The 
defendant  answered,  justifying  the  eviction  under  a  lease  from 
the  plaintiff  to  West  &  Halsey,  for  four  years  and  four  months 
from  the  1st  day  of  January,  1851,  with  a  covenant  for  three 
renewals  for  the  term  of  five  years  upon  a  rent  to  be  agreed 
upon  by  the  lessor  and  lessee,  or,  in  case  of  disagreement,  by  ar- 
bitrators, one  to  be  chosen  by  each,  and  a  third,  if  necessary, 


40  COUKT  OF  COMMON  PLEAS. 

Wells  v.  De  Leyer. 

by  the  arbitrators ;  and  that  the  lessees  had  paid  the  rent  re- 
served— that  the  plaintiff  had  evicted  the  defendant  for  non- 
payment of  rent,  notwithstanding  the  defendant  had  always 
been  willing  and  ready  to  pay  such  rent.  That  the  lessees 
had  tendered  a  lease  to  plaintiff,  from  the  1st  of  May,  1855,  to 
1st  May,  1860,  and  named  an  arbitrator  as  required  by  the  cov- 
enant in  the  lease,  but  that  the  plaintiff  had  refused  to  execute 
euch  lease.  The  plaintiff  replied,  admitting  the  lease,  but  set- 
ting up  that  no  arbitrator  had  been  appointed  by  the  defendant 
before  the  termination  of  the  first  lease,  though  he  had  notified 
them,  and  requested  them  so  to  do,  and  that  the  lessees  had 
neglected  to  pay  the  taxes  according  to  the  covenants  otf  the 
lease. 

Upon  the  trial,  the  judge  found,  as  conclusion  of  fact,  that 
the  plaintiff,  in  February,  1855,  had  caused  his  agent,  whom 
he  had  chosen  as  arbitrator  under  the  covenant  in  the  lease,  to 
call  upon  the  defendant,  and  require  him  to  appoint  an  arbitra- 
tor to  meet  him  ;  that  the  defendant  had  promised  to  do  so,  but 
"had  not  done  so.  That  the  plaintiff's  agent  had  thereupon  in- 
formed the  defendant  that,  if  he  remained  after  the  1st  of  May, 
1855,  he  would  have  to  pay  a  rent  of  $200  per  annum.  And 
then  the  defendant,  having  made  default  on  the  1st  of  August, 
was  dispossessed  under  a  warrant  in  summary  proceedings, 
which  warrant  described  the  premises  as  206  E.  26th  street,  in- 
stead of  208  E.  26th  street,  which  was  the  correct  description, 
and  that  shortly  afterwards  the  defendant  had  resumed  posses- 
sion of  the  premises.  Some  other  facts  were  decided  which 
were  immaterial  in  regard  to  the  decision. 

Upon  these  facts,  judgment  was  given  that  the  plaintiff  re- 
cover possession  of  the  premises,  and  the  defendants  appealed. 

George  W.  Geer,  the  plaintiff,  having  died  pending  the  ap- 
peal, the  suit  was  continued  By  his  administrators,  Benjamin 
W.  Wells,  and  Erastus  H.  Lathans. 

Francis  Byrne  for  the  appellant. 

I.  The  lease  from  respondent  to  West  &  Halsey,  was  obli- 
gatory upon  them  and  their  assigns,  to  him  for  the  rent  of 
$100  for  four  years  and  four  months  from  the  first  of  January, 
1851,  and  for  fifteen  years  from  first  May,  1855,  at  a  rent  "  not 


NEW  YORK— MAY,  1860.  41 

Wells  v.  De  Leyer. 

"  leas  than  $100  per  annum  in  addition  to  all  taxes  and 
u assessments"  which  were  to  be  paid  by  lessees,  inasmuch 
as  they  covenanted  "  to  hire  and  take  the  said  lot  for  the 
"  term  of  years  above  recited,  upon  the  conditions,  and  at  the 
" rents  aforesaid"  Jackson  v.  Kisselbrock,  10  J.  R.  366  ;  2 
Duer,  465. 

II.  The  covenant  for  rent,  "  to  be  agreed  upon  between  the 
"  parties,"  even  if  sufficiently  definite  to  be  enforced,   or  to 
found  a  cause  of  action,  was  for  the  benefit  of  the  respondent ; 
if  he  did  not  adopt  the  means  provided  in  the  lease  tp  make 
the  rent  greater  than  the  said  sum  of  $100,  it  was  his  fault, 
and  whether  the  agreement  was  to  be  made  before  or  after  the 
first  of  May,  1855,  does  not  appear  by  the  lease. 

III.  Until  the  terms  of  the  agreement  between  the  respon- 
dent and  the  lessees  had  been  complied  with  by  them,  or  the 
arbitrators  had  fixed  the  rent,  the  lessees  had  lawful  right  to 
hold  at  $100  per  annum,  and  taxes  and  assessments. 

IV.  The  covenant  to  agree  as  to  the  amount  of  rent  to  be 
paid  does  not  affect  the  possession,  the  term  for  which  is  cer- 
tain, viz :  4  years  and  4  months,  5  years,  5  years,  5  years  (19 
years,  4  months) ;  and  the  breach  of  such  covenant  affords  a 
cause  of  action  for  the  damages  for  the  failure  to  agree. 

Y.  That  construction  should  be  given  which  will  uphold 
contracts,  and  not  destroy  them ;  the  lessees  are,  by  their 
covenant,  bound,  in  any  event,  "  to  hire  and  take  for  the 
terms  of  years  and  at  the  rents  aforesaid,"  and  pay  the  taxes 
and  assessments,  the  parties  not  having  made  any  agreement 
for  rent  beyond,  &c. ;  this  covenant  should,  therefore,  be  con- 
sidered equally  binding  on  the  respondent. 

YI.  Any  summary  proceedings  taken  by  the  respondent 
against  the  appellant  upon  the  alleged  agreement  made  be- 
tween them  and  set  forth  in  Wart's  affidavit,  did  not 
and  could  not  affect  the  lease  by  respondent  to  West  &  Hal- 
sey  :  the  lessees  were  not  parties  to  such  proceedings,  or  even 
alluded  to  therein. 

VII.  Nothing  appeared  on  the  trial  by  which  it  could  be 
determined  that  No.  206  East  26th  street  was  the  lot  described 
in  the  complaint. 

VIII.  Any  act  of  Warts,  as  agent  of  the  respondent  and  the 


42  COURT    OF  COMMON    PLEAS. 

Wells  v.  De  Leyer. 

appellant  should  not  be  considered  as  obligatory  on  the  lessees, 
or  as  performed  under  the  covenants  in  said  lease. 

D.  McMahon  for  the  respondent. 

I.  George  W.  Geer,  the  owner  in  fee  of  the  premises  in 
question,  had  the  right,  at  the  expiration  of  the  first  term  of 
the  lease  to  West  &  Halsey,  to  re-enter  and  resume  possession 
of  the  premises  in  controversy.  He  could  have  refused  to  have 
appointed  any  arbitrator  on  his  part,  or  to  have  submitted  to 
any  arbitration,  and  the  only  remedy  the  tenant  or  the  assignee 
of  the  term  would  have  had,  would  have  been  to  resort  to  the 
covenants  of  the  lease  for  damages,  or  to  have  brought  an 
equitable  action  to  compel  the  plaintiff,  on  his  failure  to  arbi- 
trate, to  execute  to  him  a  renewal  of  the  lease  upon  equitable 
terms,  corresponding  with  the  covenants  in  the  lease.  Greason 
v.  Kettletas,  17  .New  York  Rep.  491 ;  Abeel  v.  Radcli/e,  6 
John.  C.  R.  215  ;  Wittock  v.  Duffield,  1  Hoffman  C.  R.  110. 

IE.  After  the  expiration  of  the  first  term  of  the  demise  to 
West  &  Halsey,  and  after  a  reasonable  time  to  arbitrate  upon 
the  rent  for  the  renewal  term,  in  the  manner  pointed  out  in  the 
lease,  had  expired,  Geer  obtained  possession  of  his  premises  by 
summary  proceedings  before  a  magistrate. 

These  proceedings  entirely  annulled  the  operative  force  of 
this  lease  as  a  demise,  until  the  landlord  voluntarily  restored 
possession.  It  only  existed  in  covenant  thereafter.  Where 
there  is  a  covenant  to  renew,  and  the  first  term  expires  there- 
after, the  tenant  holds  over  under  the  covenant  for  renewal. 
He  cannot  be  said  to  hold  over  under  the  lease.  Per  Yan  Ness, 
J.,  in  Abeel  v.  Radcli/e,  13  Johns.  Rep.  299. 

1.  If  the  summary  proceedings  taken  were  legal  and  juris- 
dictional,  the  lease  and  covenants,  so  far  as  they  operate  by 
way  of  demise,  were  annulled  by  force  of  the  statute.     3  Rev. 
Statutes,  5th  ed.  §  54;  Laws  of  1849,  chap.  240,  §  1 ;  Hensdale 
v.  White,  6  Hill,  507 ;  Whitney  v.  Myers,  1  Duer,  266. 

2.  If  not  jurisdictional  and  void  or  voidable,  yet  the  dispos- 
session of  the  tenant  was  an  eviction  which  destroyed  the  force 
of  the  lease,  until  the  landlord  voluntarily  restored  possession. 
Dyett  v.  Pendleton,  8  Cow.  731 ;   Christopher  v.  Austin,  1st 
Kernan's  R.  216. 


NEW  YOKE— MAY,'  1860.  48 

Wells  v.  De  Leyer. 

3.  The  statute  relative  to  summary  proceedings  only  allows 
tenants  under  certain  circumstances  to  be  restored  to  posses- 
sion.   This  is  not  one  of  them.      3  Rev.  Stat.  5th  ed.  p.  840,  § 
54;  Laws  of  1849,  chap.  240,  §  1. 

4.  The  tenant  could  not,  by  his  own  act  of  re- possession,  put 
himself  in  under  the  old  lease,  nor  thereby  enforce  a  specific 
performance  of  a  contract  to  remain,  or  compel  his  landlord  to 
arbitrate  whether  he  wished  it  or  not ;  nor  could  he  make  the 
re-possession  equivalent  to  the  renewal  term  of  five  years,  with 
all  its  rights  and  privileges.     Jackson  v.  Schulte,  18  Johns. 
174. 

III.  The  defendant  made  no  case  whatever  before  the 
Special  Term,  entitling  him  to  a  defence  or  to  equitable  relief. 
He  failed  to  show  the  landlord  in  default,  by  proving, 
1st.  That  he  was  ready  to  arbitrate,  as  required  in  the 
lease,  when  requested  in  that  behalf.  This  was  a  condition 
precedent  to  the  renewal  term,  so  far  as  he  was  concerned ; 
and  in  failure  of  that,  he  did  not  become  a  tenant  at  will  when 
the  lease  ended  (4  Kent,  114,  115,  8th  ed.),  but  was  a  tenant 
holding  over.  Rowan  v.  Little,  11  Wend.  616.  2d.  He  failed 
to  show  a  tender  of  rent  even  under  the  lease  as  it  stood,  if  re- 
newed on  the  same  rent.  Abeett  v.  Raddiffe,  15  Johns.  505  ; 
Conway  v.  Starkweather,  1  Denio,  p.  113. 

To  have  made  the  tender  effectual,  even  under  his  construc- 
tion of  the  renewal  term,  lie  should  have  offered  to  pay  or  ex- 
pressed a  readiness  to  pay  taxes  and  assessments.  By  the  cov- 
enants in  the  lease,  he  was  bound  to  pay  during  the  renewal 
term,  also,  the  yearly  taxes  and  assessments.  By  the  admission 
in  the  case  it  appears  that  the  landlord,  Geer,  paid  the  taxes  for 
1854  and  1855.  3d.  The  defendant  was  in  possession  of  the 
premises,  having  the  use  and  profits  of  its  occupancy.  In  point 
of  law  he  was  estopped  from  denying  he  was  assignee  of  the 
term.  Matter  of  Galloway,  21  Wend.  32. 

Whether  he  was  assignee  or  not  was  immaterial,  inasmuch 
as  he  was  the  sole  occupier  of  the  premises,  and  the  action  was 
ejectment,  and  there  was  an  entire  failure  of  proof  that  West 
&  Halsey  had  offered  to  arbitrate,  or  had  put  themselves  in  a 
rightful  position  towards  the  landlord,  entitling  them  to  a  re- 
newal— in  fact,  the  contrary. 


COURT    OF  COMMON   PLEAS. 


Wells  v.  De  Leyer. 


IV.  The  omission  of  the  tenant,  De  Leyer,  to  appoint  an  ar- 
bitrator, when  requested  by  Wnrtz  oh  behalf  of  Geer,  left  him 
without  any  right  as  tenant  to  have  a  renewal  under  the  lease. 
The  notice  given  to  him  by  Geer,  if  he  stayed  on  the  premises 
after  the  first  of  May,  1655,  he  would  have  to  pay  $200,  and 
his  neglect  to  dissent  from  his  fixing  of  the  rent,  followed  by 
his  subsequent  occupation  without  dissent,  amounted  to  a 
waiver  of  arbitration  on  the  part  of  De  Leyer  to  fix  the  rent, 
and  to  an  assent  of  the  landlord's  mode  of  fixing  it.  The  arbi- 
tration was  only  to  take  place  in  case  the  parties  failed  to 
agree.  It  would,  therefore,  make  him  either  a  tenant  from 
year  to  year  at  that  rent,  or  a  tenant  for  a  renewal  term  of  five 
years,  at  the  rent  of  $200  a  year,  and  taxes  and  assessments. 
Conway  v.  Starkweather,  1  Denio,  113  ;  Despard  v.  Walbridge, 
15  K  Y.  Eep.  374. 

BY  THE  COURT. — DALY,  F.  J. — Upon  taking  the  covenants 
together,  it  is  plain  that  the  premises  were  demised  for  five 
years  at  $100  rent  per  year,  ending  on  the  1st  of  May,  1855, 
with  a  privilege  of  renewal  for  five  years,  at  a  rent  which  was 
not  to  be  less  than  $100  per  annum,  to  be  fixed  in  the  mode 
pointed  out  in  the  lease,  and  for  two  additional  renewals  there- 
after of  five  years  each,  at  rents  to  be  fixed  in  the  same  man- 
ner. 

It  is  immaterial  whether  the  defendant  was  a  sub-tenant  of 
West  &  Halsey,  or  assignee  of  the  lease,  as  neither  he  nor  West 
&  Halsey  took  any  steps,  before  the  expiration  of  the  term,  to 
appoint  an  arbitrator  in  pursuance  of  a  covenant  for  a  renewal. 
The  landlord,  through  his  agent,  appointed  an  arbitrator,  of 
which  appointment  the  defendant  was  duly  notified  a  reason- 
able time  before  the  expiration  of  the  term,  but  though  urged 
several  times  by  the  plaintiff's  agent  to  appoint  an  arbitrator,  and 
though  he  promised  to  appoint  one,  and  in  fact  declared  that 
he  had  appointed  one,  and  the  arbitrator  appointed  on  behalf  of 
the  landlord  attended  at  the  place  and  hour  designated  by  the 
defendant  to  meet  his  arbitrator,  he  did  not  appear.  The 
arbitrator  appointed,  who  was  also  the  landlord's  agent,  made 
repeated  efforts  thereafter.  The  defendant  told  him  he  would 
appoint  another  man,  but  would  or  did  not  do  so  ;  and  when 
the  term  was  about  expiring,  the  landlord's  agent  informed  tho 


.NEW  YORK^-MAY,  1860.  45 

Wells  v.  De  Leyer. 

defendant  that  if  he  remained  in  occupation  of  the  premises  he 
would  have  to  pay  $200  rent  after  the  1st  of  May,  1855. 

The  landlord,  by  his  covenant,  had  agreed  to  extend  the 
terms  at  a  rent  to  be  agreed  upon  between  the  parties,  and 
if  not  agreed  upon,  to  be  fixed  and  settled  upon  by  arbi- 
trators. If  the  landlord  had  failed  to  appoint  an  arbitra- 
tor on  his  part  before  the  expiration  of  the  term,  the  lessees  or 
their  assignees,  might,  in  an  action  for  a  specific  performance, 
have  compelled  the  landlord  to  renew  the  lease  at  the  rent  pre- 
viously paid,  (Greason  v.  Keteltas,  17  N.  Y.  Rep.  496 ;)  but  as 
the  terms  expired,  without  the  rent,  at  which  the  renewed 
term  was  to  be  granted,  being  fixed  either  by  agreement  or  by 
arbitration,  entirely  through  the  neglect  of  the  lessees, 
or  their  assignee,  to  do  what  they  were  required  by  the 
covenant  to  do,  the  estate  in  the  lessees,  or  their  assigns,  ended, 
and  the  right  to  the  renewal  was  gone.  It  is  urged,  by  the  de- 
fendant, that,  as  no  time  was  fixed  for  the  appointment  of  an 
arbitrator,  that  the  covenant  is  void  for  uncertainty.  If  it  is, 
then  the  lessees,  or  their  assigns,  derive  no  benefit  from  it,  and 
it  does  not  lie  with  them  to  complain.  But  I  suppose  that 
every  such  covenant  is  to  have  a  reasonable  interpretation,  and 
that  it  may  be  gathered  from  it  that  it  was  the  intention  of  the 
parties  that  the  rent  was  to  be  agreed  upon  or  fixed  by  arbitra- 
tion, before  the  new  term  was  to  begin,  for  which  a  renewed 
lease  was  to  be  given,  and  if  the  neglect  to  do  so  was  entirely  at- 
tributable to  the  lessees,  or  their  assigns,  there  was  a  failure  of 
performance  on  their  part,  and  they  can  take  no  benefit  from 
the  covenant. 

The  defendant,  if  he  were  the  assignee,  having  failed  to  do 
what  it  was  incumbent  on  him,  if  he  wished  to  have  the 
benefit  of  the  covenant,  and  having  continued  in  occupation  of 
the  premises  after  the  expiration  of  the  original  term,  after  be- 
ing notified  by  the  landlord's  agent  that,  if  he  did  so,  he  must 
pay  rent  at  the  rate  of  $200  a  year,  and  not  having  expressed 
any  dissent,  when  so  notified,  I  think  he  must  be  regarded  as 
assenting  to  occupy  the  premises  as  a  tenant  from  year  to  year 
at  that  rate. 

Having  neglected  to  pay  the  first  quarter's  rent  at  that  rate, 
when  it  was  demanded,  the  landlord  resorted  to  the  summary 
proceedings  given  by  the  statute  to  dispossess  him.  ,/The  affi- 


46  COURT   OF  COMMON  PLEAS. 

Wells  v.  De  Leyer 

davit  was  sufficient  to  give  the  Justice  jurisdiction  to  issue  the 
summons.  It  contained  all  that  the  statute  required.  The 
summons  was  served  upon  the  defendant,  and  he  appeared  be- 
fore the  Justice,  and  put  in  a  counter-affidavit. 

What  was  contained  in  the  counter-affidavit  did  not  appear, 
nor  did  it  appear,  as  the  Justice  had  lost  his  minutes,  what  tes- 
timony was  given,  or  what  was  litigated  before  him.  All  that  is 
shown  by  the  process  is  that  the  Justice  rendered  judgment  in 
favor  of  the  landlord  that  he  should  have  possession  of  the  pre- 
mises described  in  the  affidavit,  by  reason  of  the  non-payment  of 
the  rent  specified  therein.  The  premises  were  described  in  the 
affidavit  as  a  lot  of  ground  known  as  No.  206  East  26th  st.  in  the 
City  of  New  York.  If  there  was  a  mistake  in  the  number,  the  de- 
fendant could  waive  it  (Ferris  v.  Humphrey,  4  Denio,  186),  or  if 
he  took  issue  upon  it,  the  judgment  rendered  by  the  Justice 
was  conclusive  against  him.  The  only  question  that  could  arise 
upon  the  trial  at  the  special  term,  was  whether  the  proceed- 
ings before  the  Justice,  related  to  the  same  premises,  and  this 
was  conclusively  shown.  The  judgment,  given  by  the  Justice, 
put  an  end  to  the  tenancy  subsisting  by  virtue  of  the  implied 
agreement  to  pay  rent  at  the  rate  of  $200  a  year,  after  the  ex- 
piration of  the  lease  to  West  &  Halscy.  3  Rev.  Stat.  pp.  836, 
838,  840,  §§  28,  39,  54,  5th  ed. ;  Hin&dale  v.  White,  6  Hill, 
507 ;  Whitney  v.  Meyers,  I  Duer,  276.  The  defendant,  hav- 
ing been  removed  from  the  premises,  and  the  landlord  put  in 
possession  under  the  warrant  issued  by  the  Justice,  the  entry 
by  the  defendant  afterwards  was  unlawful.  He  was  not  then 
in  occupation  as  a  tenant  at  will,  or  at  sufferance,  or  from  year 
to  year,  but  as  a  trespasser,  and  wrong  doer,  and  ejectment 
would  lie  to  recover  possession  of  the  premises. 

The  record  of  the  proceedings  for  a  forcible  entry  and  de- 
tainer was  properly  excluded.  The  title  to  the  premises  is  not 
in  question  in  such  a  proceeding.  The  only  matter  inquired 
into,  is  whether  the  party  charged  entered  by  force  upon  one, 
having  previously  a  peaceable  possession,  and  held  out  by 
force.  The  People  v.  Van  Nostrand,  9  Wend.  51 ;  People  v. 
Leonard,  11  Johns.  504  ;  People  v.  Rickert,  8  Cow.  226.  The 
judgment  should  be  affirmed. 


NEW  YORK— MAY,  1860. 


Stilwell  v.  Raynor. 


ISAAC  N.  STILWELL  v.  CAPTAIN  RAYNOR,  Master  and  Owner 
of  the  Schooner  E.  J.  Raynor. 

The  "  act  concerning  the  pilots  of  the  channel  of  the  East  River,  commonly 
called  Hell  Gate,"  passed  April  15th,  1847  (2  Rev.  Stat.  5th  ed.  428)— Held, 
constitutional  and  valid. 

The  clause  in  the  Federal  Constitution,  conferring  upon  Congress  the  power 
"  to  regulate  commerce  with  foreign  nations,  and  among  the  several  States" 
(art.  1,  §  8,  subd.  3),  does  not  deprive  the  several  States  of  power  to  legislate 
upon  the  subject  of  pilots. 

APPEAL  by  plaintiff  from  a  judgment  entered  against  him  hi 
the  First  Judicial  District  Court,  before  Justice  DUSENBURY. 

The  action  was  brought  by  the  plaintiff  as  a  Hell  Gate  pilot, 
to  recover  half  pilotage  fees  of  the  defendant,  under  the  act  of 
the  Legislature,  passed  April  15,  1847. 

Upon  the  trial,  the  Justice  dismissed  the  case,  upon 
the  ground  that  the  act  of  1847  was  unconstitutional  and 
void. 

The  plaintiff  now  appeals  to  the  Court  of  Common  Fleas. 

Alanson  Nash  for  appellant. 
Frank  Byrne  for  respondents. 

HILTON,  J. — The  plaintiff,  a  Hell  Gate  pilot,  brought  this  ac- 
tion to  recover  half  pilotage  fees  of  the  defendant  under  the 
provisions  of  §  7,  of  the  "  act  concerning  the  pilots  of  the  chan- 
nel of  the  East  River,  commonly  called  Hell  Gate,"  passed 
April  15,  1847,  upon  the  ground  that  he  had  tendered  his  ser- 
vices as  pilot,  to  navigate  the  defendant's  vessel  through  the 
channel  of  Hell  Gate,  and  hacl  been  refused. 

Upon  the  trial' the  Justice  dismissed  the  case  upon  the 
ground  that  the  act  under  which  the  plaintiff  claimed  to  re- 
cover was  unconstitutional  and  void,  and  as  he  expressed  no 


48  COURT  OF  COMMON  PLEAS. 

Stilwell  v.  Raynor. 

opinion  upon  the  evidence  offered,  it  is  therefore  unnecessary 
for  us  to  determine  upon  this  appeal  whether  the  evidence  ad- 
duced before  the  Justice  was  sufficient  to  entitle  the  plaintiff 
to  recover,  if  the  Justice  entertained  a  different  view  of  the 
act,  which  created  the  right  that  the  plaintiff  sought  to  enforce. 

I  shall  therefore  assume  that  the  only  question  before  us  is, 
whether  the  act  referred  to  is  unconstitutional,  as  the  Justice 
declared. 

By  the  Federal  Constitution,  the  several  States  conferred  up- 
on Congress  the  power  "  to  regulate  commerce  with  foreign 
nations,  and  among  the  several  States,  and  with   the   Indian 
tribes  "  (Const.  U.  S.  art.  1,  §  8,  sub.  3),  and  as  this  power  ne- 
cessarily includes  the  regulation  of  navigation,  and  the  right  to 
prescribe  rules,  in  conformity  with  which  it  must  be  carried 
out,  a  power  extending  to  every  part  of  a  voyage,  with  a  right 
to  regulate  those  who. conduct,  or  assist,  in  conducting  naviga- 
tion : — it  is  claimed  that  it  necessarily   deprives   the   several 
States  of  all  power  to  legislate  on  the  subject  of  pilots,   and 
such,  I  am  satisfied,  was  a  very  prevalent  view  of  the  subject 
(See  Joint  Resolution,  Laws  1847,  p.  484),  prior  to  the  decision 
of  the  United  States  Supreme  Court  in  the  case  of  Cooley  v. 
Board  of  Wardens  of  ike  Port  of  Philadelphia  (12  Howard 
TJ.   S.   299).      That   case  was  very   similar  to  this.     It  arose 
under  a  law  of  the  State  of  Pennsylvania,  which  required  ves- 
sels sailing  in  the  Delaware   River  to  receive  a  pilot,  or  upon 
refusal  or  neglect  to  do  so,  to  pay  half  pilotage.      It  appeared 
that  Cooley,  as  owner  of  several  vessels  navigating  that  River, 
refused  to  receive  a  pilot,  or  pay  their  fees,  and  he  was  sued  by 
the  Board  of  Wardens  to  recover  half  pilotage,  under  the  pro- 
visions of  the  law  referred  to.      The   action   was  originally 
brought  before  a  magistrate  in  the  City  of  Philadelphia,  who 
gave  judgment  against  Cooley.      An  appeal  was  taken  to  the 
Court  of  Common  Pleas,  who  gave  a  similar  judgment.    It  was 
then  carried  to  the  Supreme  Court  of  the  State  of  Pennsylva- 
nia, who  affirmed  the  judgment,  by  adding  that  the  act  was 
not,  in  any  of  its  provisions,  at  variance  with  the  Constitution 
or  laws  of  the  United  States,  but' was  a  constitutional  and  legal 
enactment.     The  case  was  then  removed  to  the  Supreme  Court 
of  the  United  States,  who,  in  December,  1851,  likewise  affirmed 
the  .judgment,  holding,  that  the  mere  grant  to  Congress  of  the 


NEW  YOKK— MAY,   1861.  49 

Loeschigh  v.  Blun. 

power  to  regulate  commerce,  did  not  deprive  the  several  States 
of  the  power  to  regulate  pilots  and  that  although  Congress  has 
legislated  on  the  subject,  yet  its  legislation  has  manifested  an  in- 
tention not  to  regulate  the  subject,  but  to  leave  its  regulation  £o 
the  several  States.  The  law  was  then  declared  to  have  been  en- 
acted by  Pennsylvania  by  virtue  of  a  power  residing  in  the 
State  to  so  legislate,  that  it  was  not  in  conflict  with  any  law  of 
Congress,  nor  did  it  interfere  with  any  system  which  Congress 
had  established  or  sanctioned,  and  that  therefore  the  law  was 
valid. 

In  support  of  this  view,  and  for  the  purpose  of  showing  that 
Congress  recognized  this  power  to  exist  in  the  several  States, 
the  Court  referred  to  the  act  of  Congress  of  August  7,  1789,  § 
4:  of  which  is  as  follows,  "  That  all  pilots  in  the  bays,  rivers,  in- 
lets, harbors  and  ports  of  the  United  States,  shall  continue  to 
be  regulated  in  conformity  with  the  existing  laws  of  the 
States  respectively,  wherein  such  pilots  may  be,  or  until  such 
laws  as  the  States  may  respectively  hereafter  enact  for  that 
purpose,  until  further  legislative  provision  shall  be  made  by 
Congress,"  and  it  is  only  necessary  to  add  in  conclusion  that 
as  Congress  had  not  yet  seen  fit  to  legislate  upon  the  subject 
of  pilotage,  the  act  in  question  was  passed  by  the  State  of 
New  York,  under  an  undoubted  right  in  the  legislature  to  en- 
act it,  and  is  constitutional  and  valid. 

Judgment  reversed. 

DALY,  F.  J.,  concurred. 


WILLIAM  LOESCHIGH  and  others  v.  NATHAN  BLUN  and  others. 

Where  property  is  given  in  exchange  for  notes,  void  in  their  inception  for 
usury,  the  property  BO  given  in  exchange  may  be  recovered,  and  the  ex- 
change rescinded,  on  the  discovery  of  the  nature  of  the  notes ;  and  an  action 
will  lie  for  the  conversion  of  the  property,  notwithstanding  the  person  giv- 
ing the  notes,  acted  in  good  faith,  and  without  knowledge  of  their  character. 


50  COUKT  OF  COMMON  PLEAS. 

Loeschigh  v.  Blun. 

THIS  action  was  brought  to  recover  the  value  of  two  promis- 
sory notes  of  defendants',  and  a  bank  check  of  plaintiffs,  of 
the  value  of  two  thousand  and  seventy-four  dollars  and  forty- 
two  cents  received  by  the  defendants  from  the  plaintiffs.  The 
defendants,  under  a  general  denial,  set  up  that  they  had  given 
in  exchange  for  such  notes  and  checks,  the  note  of  James  De 
Gray  &  Co.,  purchased  by  them  from  third  parties,  in  the  reg- 
ular course  of  business.  The  plaintiffs,  in  rebuttal,  proved  that 
such  note  was  an  accomodation  note,  and  that  the  parties  for 
whose  accommodation  the  same  was  made,  had  sold  it  for  a 
usurious  discount.  Some  attempt  was  made  to  show  a  knowl- 
ege  of  this  fact  in  Nathan  Blun,  who  was  the  active  member 
of  his  firm  in  the  transaction,  and  had  a  long  negotiation  with 
the  plaintiff  in  relation  to  the  exchange. 

The  defendants  offered  evidence  to  the  effect  that  the  plain- 
tiffs had  not  relied  on  defendants' statements,  but  had  inquired 
of  the  makers  of  the  note  as  to  its  validity,  and  were  therefore 
now  estopped  from  denying  it. 

The  referee,  to  whom  the  case  was  referred,  found  substan- 
tially, that  the  note  was,  on  the  proposal  of  defendants,  ex- 
changed for  the  indebtedness  of  defendants,  and  a  check  of 
plaintiff;  that  the  note  was  an  accommodation  note,  and  sold 
at  a  usurious  discount ;  that  the  makers  were  insolvent  before 
the  delivery  of  the  note  by  defendants  to  plaintiffs ;  that 
neither  plaintiffs  nor  defendants  were  aware,  at  the  time  of  the 
exchange,  of  such  insolvency,  or  the  usuriousness  of  the  note, 
but  that  Blun  had  represented  the  note  to  be  a  regular  busi- 
ness note ;  that  these  facts  were  discovered  by  plaintiffs  two 
days  after  the  transaction,  and  a  tender  of  such  note  and  a  de- 
mand for  the  exchanged  property,  made  by  the  plaintiffs  on 
the  same  day,  and  that  the  exchanged  property,  viz  :  the  two 
notes  of  defendants,  and  the  check  of  the  plaintiffs,  were  worth 
two  thousand  and  seventy -four  dollars  and  forty-two  cents ; 
that  the  plaintiffs  were  entitled  to  rescind  the  exchange,  both 
for  the  insolvency  of  the  makers  of  the  note,  and  because  the 
note  was  void ;  and  that  the  amount  of  two  thousand  and  sev- 
enty-four dollars  and  forty-two  cents,  with  interest,  was  due  to 
the  plaintiffs. 

Various  exceptions  were  taken  in  the  course  of  the  trial,  and 
to  the  referee's  report.  Judgment  was  entered  in  accordance 


NEW  YORK— MAY,   1861.  51 

Loeschigh  v.  Blun. 

with  the  report,  and  the  defendant  appealed  to  the   general 
terra  of  this  Court. 


Shea  &  Richardson  for  the  appellants. 

I.  The  answer  made  by  Mr.  Blun,  that  it  was  a 
regular  business  note,  will  not  sustain  the  judgment. 
(1.)  It  was  made  to  an  inquiry  about  the  consideration  of  a 
note  to  which  he  was  not  a  party,  and  such  inquiry,  therefore, 
merely  sought  to  elicit  whatever  information  he  had,  and  his 
opinion.  His  reply  was  in  good  faith,  and  what  he  himself  be- 
lieved, and  had  reason  to  believe,  to  be  the  truth.  Haycraft 
v.  Creasy,  2  East's  Rep.  92 ;  1  Sugden  on  Vendors,  5, 
§  14 ;  Mason  v.  Crosby,  1  Woodbury  and  Minot,  352,  353. 
(2.)  The  plaintiffs  did  not  permit  themselves  to  trust  to  the 
opinion  of  Mr.  Blun,  but  sent  to  James  De  Gray  &  Co.  to  ques- 
tion the  original  source  of  the  note,  with  a  view  to  protect 
themselves  against  any  equitable  or  personal  defence  from  that 
source.  Clapham  v.  ShiUito,  7  Beavan's  Rep.  146  ;  1  Sugden 
on  Vendors,  5,  p.  14  ;  Mason  v.  Crosby,  1  Woodbury  and  Minot, 
252,  253.  (3.)  Mr.  De  Gray's  answer  to  that  enquiry  will  estop 
the  makers  from  availing  themselves  of  the  personal  defence  of 
usury,  if  any  there  is.  Carpenter  v.  Stilwell,  1  Kernan's  Rep. 
73.  Therefore,  in  legal  effect,  the  note  comes  up  to  Mr.  Blun's 
opinion  of  it.  (4.)  The  plaintiffs  cannot  recover  in  this  action 
upon  a  mere  representation  by  the  defendant  Blun,  unless  he 
also  shows  that  the  representation  was  bottomed  in  fraud. 
Chandelor  v.  Lopus,  1  Smith's  Leading  Cases,  p.  77 ;  Lord  v. 
Goddard,  13  Howard  IT.  S.  Rep.  211;  1  Story  on  Eq.  Jurispr. 
p.  191 ;  Gallagher  v.  B'-unnel,  6  Cowen's  Rep.  352,  353. 

II.  The  referee  is  in  error  in  finding  that  the  makers  and 
endorsers  of  the  note  having  been  insolvent,  and  having  failed 
on  the  4th  of  September,  1857,  therefore  this  action  is  main- 
tainable, although  the  defendant,  Blun,  and  his  co-defendants, 
acted  in  good  faith.  This  exchange  is  an  executed  contract, 
and  transferred  and  vested  a  present  title.  Heidenheimer  v. 
Lyon,  3  E.  D.  Smith's  R.  56.;  Des  Arts  v.  Legget,  16  New  York 
Rep.  589. 


52  COUKT  OF  COMMON  PLEAS.  ^ 

Loeschigh  v.  Blun. 

III.  The  last  ground  upon  which  the  referee  places  his  re- 
port is  erroneous.  That  the  note  being  usurious  and  "  void," 
in  its  inception  and  in  the  hands  of  the  said  Charles  !B£.  Rose, 
the  plaintiffs  had  a  right  to  rescind  the  transfer  and  trans- 
action, and  to  recover  back  the  two  notes  and  check.  (1.)  The 
case  does  not  coine  within  the  principle  of  implied  warranty  of 
title.  The  usury  merely  concerns  the  consideration  of  the 
note,  and  even  mere  breach  of  warranty  of  title,  in  the  absence 
of  fraud,  does  not  entitle  the  plaintiffs  to  rescind  this  transfer. 
1  Smith's  Leading  Cases,  237 ;  Muller  v.  Eno,  4  Kernan's 
Reps.  601 ;  Voorhies  v.  Earl,  2  Hill,  285  ;  Gary  v.  Gruman, 
4  Idem,  625  ;  Case  v.  Hall,  24  Wendell's  R.  103.  (2.)  Where 
the  transfer  was  as  in  this  case,  by  mere  delivery  of  the  note, 
without  indorsement,  made  in  exchange  for  other  bills,  "  no 
right  of  action  whatever  arises  against  the  defendants,  in  case 
the  note  turns  out  to  be  of  no  value."  Chitty  on  Bills,  247  ; 
Story  on  Promissory  Notes,  p.  118.  The  case  of  forged  or 
stolen  property  is  governed  by  a  different  principle.  Canal 
Bank  v.  Bank  of  Albany,  1  Hill,  287.  Usury  is  merely  a  per- 
sonal defence,  and  only  voidable.  Scroeppel  v.  Corning,  10 
Barb.  579 ;  Murray  v.  Johnson,  5  Selden's  R.  73.  As 
also  is  the  case  "  where  a  man  assigns  a  note  for  any  sufficient 
consideration,  knowing  it  to  be  of  no  value,  and  the  vendee  be 
not  aware  of  the  fact ;  in  these  cases,  the  property  parted  with 
can  be  recovered  by  the  vendee.  Chitty  on  Bills,  247. 

Augustus  F.  Smith  for  the  respondents. 

I.  The   representations  made  by  the  defendant  Blun,  that 
the  note  of  De  Gray  &  Co.  was  a  regular  business  note,  prov- 
ing to  be  untrue,  the  plaintifls  were  entitled  to  rescind  the  ex- 
change.     (1.)    If  he  knew  the  representations  to  be  false,  the 
plaintiffs  are  entitled  to  rescind  for  fraud  in  fact.      (2.)     If  ha 
knew  nothing  either  way,  it  was  a  fraud  to  make  a  representa- 
tion of  a  fact  of  which  he  knew  nothing.  Galoupeau  v.  Ketchum, 
3  E.  D.  Smith,  1?5  ;  Story  on  Sales,  165,  179  ;  1  Story  Eq.  Jur. 
193,  §  191,  194 ;  2  Kent,  485,  note  1,  and  cases  cited. 

II.  If  the  parties  had  made  thp  exchange,  both  supposing 
the  note  of  De  Gray  &  Co.  to  be  a  valid  note,  and  it  proved  to 
be  void  by  statute,  the  plaintiffs  could  rescind   the   exchange 


NEW  YORK— MAY,   1861.  53 

Loeschigh  v.  Blun. 

upon  discovering  that  the  note  was  void.  This  presents  the 
common  case  of  a  mistake  of  fact.  Martin  v.  McCormick,  4 
Selden,  331  ;  Story's  Eq.  Jur.  140,  141,  142,  143  ;  Wfieadon  v. 
Olds,  20  Wend.  174;  see  also,  Benedict  v.  Field,  1.6  N.'Y. 
595  ;  Story  on  Contracts,  102  to  110 ;  Chitty  on  Bills,  245. 

III.  The  defendant,  Blun,  also  represented,  in  substance, 
that  the  note  was  a  good  note.  The  fact  was  that  both  makers 
and  indorsers  had  failed,  and  were  insolvent. 

The  same  considerations  apply  to  these  facts  that  are  stated 
under  the  first  point; 

BY  THE  COURT. — DALY,  F.  J. — This  case  is  not  distinguish- 
able, in  principle,  from  Galoupeau  v.  Kctchum,  3  E.  D.  Smith, 
175.  The  referee  has  found  that  the  note  was  usurious  and 
void  in  its  inception  ;  that  the  defendant  Blun,  in  answer  to 
the  plaintiffs'  inquiry,  declared  it  to  be  a  regular  business  note, 
and  that  neither  Blun  nor  his  co-defendants  had  any  know- 
ledge, when  this  representation  was  made,  whether  it  was  a  bus- 
iness note  or  not,  and  this  finding  is  sustained  by  the  evidence. 

The  plaintiffs  having,  upon  this  representation,  exchanged 
their  check  and  two  notes  for  a  note  that  was  absolutely  void, 
were,  when  they  afterwards  discovered  the  representation  to 
be  false,  entitled  to  have  their  check  and  the  two  notes  re- 
turned to  them,  upon  tendering  back  the  note  they  had  received 
in  exchange.  It  is  wholly  immaterial  whether  the  defendant 
believed  it  to  be  a  business  note  or  not,  or  whether  they  knew 
the  real  character  of  the  note  ;  for  if,  in  the  first  place, 
both  Blun  and  the  plaintiffs  acted,  in  making  the  exchange,  up- 
on the  assumption  that  the  note,  which  never  had  any  validity 
at  all  as  an  obligation,  was  a  valid  business  note,  the 
plaintiffs,  upon  discovering  the  mutual  mistake,  had  a  right  to 
rescind  the  contract  of  exchange  ;  (Martin  v.  McCormick,  ± 
Seld.  331;  Hitchcock  v.  Giddings,  4  Price,  135;  Bennett  v. 
Judson,  21  N.  Y.  Repts.  238 ;  1  Story  Eq.  Juris.  §  193),  or  if, 
in  the  second  place,  Blun  knew  the  real  character  of  the  note, 
then  he  was  guilty  of  a  fraud  in  making  ihe  representation 
which  he  did,  and  the  plaintiff,  upon  that  ground,  would  be  en- 
titled to  rescind  the  exchange.  The  case  of  Hay  craft  v. 
Cn-asy  (2  East.  92),  upon  which  the  defendants  rely,  was  an 
action  to  recover  damages  for  "  a  false,  fraudulent  and  deceit- 


54  COUKT  OF  COMMON  PLEAS. 

i  - 

Berry  v.  Mayhew. 

ful  representation;  and  all  that  need  be  said  respecting  it  is 
that  the  decision  was  put  upon  the  ground  that  the  statement 
of  the  defendant,  that  he  knew  of  his  own  knowledge  that  the 
person  inquired  about  had  been  left  a  considerable  fortune, 
and  was  in  daily  expectation  of  a  greater  one,  when  the  fact 
was  that  he  had  been  duped  himself  to  the  extent  of  two  thou- 
sand pounds,  by  the  artful  show  of  appearances  and  false  rep 
resentations  of  the  person  referred  to — was  not  sufficient  to 
show  an  intentional  design,  on  his  part,  to  deceive  the  plaintiff; 
that  his  assumption  of  knowledge,  under  the  circumstances, 
was  rather  his  nndiscriminating  mode  of  asserting  his  strong 
conviction  and  belief,  and  not  such  an  act  of  fraud  or  deceit  as 
would  subject  him  to  an  action  for  damages.  It  is  a  very  dif- 
ferent case  from  this.  The  judgment  should  be  affirmed. 


HIBAM  G.  BEEBT  v.  THOMAS  M.  MATHEW  and  others. 


Where  evidence  was  ruled  out  by  the  Court  below,  the  appellate  Court  will  not 
inquire  into  its  relevancy,  unless  it  or  its  substance  appear  in  the  case,  but 
will  assume  that  the  decision  of  the  Court  was  correct. 

The  defendant  collected  a  sum  of  money  for  8.  with  directions  to  pay  the  same 
to  the  plaintiff, — Held,  that  this  was  equivalent  to  an  express  promise  by 
the  defendant  to  the  plaintiff  to  pay  him  such  sum,  and  an  action  for  money 
had  and  received  by  plaintiff  was  well  brought.  Held,  further,  that  no  con- 
sideration between  plaintiff  and  S.  need  be  shown. 

Under  such  circumstances,  it  is  no  defence,  that  another  party  claims  the  same 
sum,  but  the  money  should  be  paid  into  Court,  and  such  third  party  brought 
in  by  way  of  interpleader. 

APPEAL  by  defendants  from  a  judgment  rendered  in  favor  of 
plaintiff  on  a  trial  before  Judge  Brady,  without  a  Jury. 

The  facts  in  this  case  are  fully  stated  in  the  opinion  of  the 
Court. 


NEW  YOKK— MAY,   1861.  55 

Berry  v.  Mayhew. 
Beebe,  Dean,  and  Donahue,  for  the  appellants. 

I.  The  Court  should  have  dismissed  the  complaint  on  the 
motion  for  that  purpose.      1.    There  was  no  evidence  that  the 
defendants  were  partners.     2.  There  was  no  evidence  that  the 
defendants,  or  either  of  them,  received  the  moneys  claimed.  3. 
There  was  no  evidence  that  the  plaintiff  was  the  owner  of,  or 
in  any  way  interested  in,  the  moneys. 

II.  The  money  claimed  was  the  earnings  of  the  brig  Frances 
Ellen,  referred  to  in  the  letter  of  Sawyer.    The  letter  of  Sawyer 
was  not  an  assignment  or  transfer. 

III.  The  letter  of  Sawyer,  enclosing  the  draft,  merely  con- 
stituted the  plaintiff  the  agent  of  the  owners  of  the  vessel,  to 
receive  the  moneys  when  collected,   and    vested  no   title   in 
plaintiff. 

IV.  Plaintiff  was  not  the  owner  of,  nor  interested   in,   the 
brig,  and  consequently  not  entitled  to  the  moneys  claimed,  they 
being  her  earnings. 

J.  W.  Gerard,  Jr.  (Platt,  Gerard  &  Buckley)  for  the  respon- 
dents. 

I.  It  was  proved  at  the  trial,  without  any  conflicting  testi- 
mony, that  Captain  Sawyer  enclosed   to   the   defendants   the 
note  of  Captain  Fisk  (which  is  produced,  paid,  and  cancelled), 
with  directions  to  collect  it  and  remit  the  money  to  the  plain- 
tiff.   The  defendants  received  the  note,  and  acted  under  this 
retainer. 

II.  The  plaintiff  then  draws  for  this  money,  and  on  presen- 
tation of  the  draft,  the  only  objection  defendants  make  is,  that 
the  money  is  trusteed,  otherwise   "  they  would  be  happy  to 
pay  "  over  the  money. 

III.  The  above  being  the  facts,  the  law  is,  that   an   action 
may  be  maintained  on  the  reception  of  money  by  the  defend- 
ant of  a  third  person  for  the  benefit  of  the  plaintiff,  without 
any  consideration  moving  from  the  plaintiff.      Weston  v.  Bar' 
her,  12  Johns.  276 ;  Schermerhom  v.  Vanderheyden,  1  Johns. 
139;  Shear  v.ffittsdale,  13  Johns.  496  ;  Judson  v.  Gray,   17 
How.  Pr.  R.  289. 


56  COUKT  OF  COMMON  PLEAS. 

Berry  v.  Mayhew. 

BY  THE  COURT. — HILTON,  J. — The  complaint  was  that  the 
defendants,  composing  the  firm  of  Mayhew,  Talbot  &  Co.,  had 
received  two  hundred  dollars  to  and  for  the  use  and  benefit  of 
the  plaintiff,  which  they,  upon  request,  refused  to  pay  over. 
The  answer  contained  a  denial  of  having  received  the  sum 
specified,  or  any  money  for  the  use  of  the  plaintiff,  and  also 
denied  that  the  defendants  were  co-partners. 

At  the  trial  before  the  Court,  without  a  jury,  the  plaintiff, 
to  establish  his  case,  produced  two  letters,  dated  June  3d  and 
14th,  1858,  and  in  the  defendant's  possession.  They  were 
written  and  sent  to  the  defendants  by  D.  J.  Sawyer,  and  the 
first  of  which  enclosed  a  note  of  C.^A.  Manstield  for  two  hun- 
dred dollars,  with  a  request,  in  substance,  that  they  would 
collect  it,  by  suit,  if  necessary,  without  delay,  and  remit  the 
money  to  the  plaintiff.  The  second  letter  appears  to  have  been 
written  after  the  defendants  had  received  the  'money  on  the 
note,  and  had  informed  Sawyer  by  telegraph  that  it  had  been 
attached  for  the  debts  of  James  B.  Mansfield.  In  this  letter, 
after  stating  that  the  money  does  not  belong  to  James  B. 
Mansfield,  Sawyer  adds,  "If  you  can  get  it  out  of  his  hands, 
and  pay  it  over  to  Berry,  I  should  be  glad." 

Subsequently,  the  plaintiff  demanded  the  money  of  the  de- 
fendants Talbot  and  Butler,  when  they  answered  that  they 
should  be  happy  "  to  pay  over  the  money  if  there  was  not  an 
attachment  or  trusteeship,"  giving  no  other  reason  for  their  re- 
fusal. 

.  After  it  was  further  shown  that  the  defendant  Simpson  was 
not  a  member  of  the  defendant's  firm,  but  that  their  partner- 
ship consisted  of  the  other  defendants,  the  plaintiff  rested  his 
case,  and  a  non-suit  was  then  asked  for  by  the  defendants, 
upon  various  grounds,  but  denied,  and  an  exception  taken  to 
such  denial. 

The  testimony  of  the  defendants'  witnesses  did  not,  in  any 
degree,  impair  the  case  thus  shown  by  the  plaintiff,  nor  did  the 
defendants  attempt  to  show  that  the  money  had  been  attached 
as  stated  by  them  at  the  time  of  the  demand  made,  but,  as  a 
part  of  the  defence,  a  letter  was  offered  in  evidence  from  Saw- 
yer to  the  defendants,  dated  June  16,  185S.  Its  admission  be- 
ing objected  to  by  the  plaintiff,  it  was  ruled  out  by  the  Judge, 
and  an  exception  taken  by  the  defendants  to  such  ruling. 


NEW   YORK— MAY  1861.  57 

Berry  v.  Mayhew. 

As  the  printed  case  submitted  to  us  does  not  contain  this 
letter,  we  are  unable  to  say  whether  it  was  or  was  not  material 
to  the  issue  presented  by  the  pleadings.  "We  must,  therefore, 
assume  that  the  judge  who  tried  the  cause,  and  had  an  oppor 
tunity  to  ascertain  the  contents  of  the  letter,  properly  re- 
jected it. 

At  the  close  of  the  trial,  upon  the  application  of  the  plain- 
tiff, the  name  of  the  defendant  Simpson  was  stricken  out  of  the 
complaint,  and  subsequently  judgment  was  given  against  the 
remaining  defendants,  who  were  shown  to  have  been  co-part- 
ners at  the  time  the  money  was  thus  received. 

I  am  unable  to  understand  upon  what  ground  this  judgment 
can  be  deemed  erroneous.  The  evidence  derived  from  the  let- 
ters in  the  defendant's  possession,  being  wholly  uncontradicted, 
clearly  showed  that  they  had  received,  at  the  request  of  Saw- 
yer, two  hundred  dollars  upon  the  trust  that  they  would  pay  it 
over  to  the  plaintiff.  This  was  equivalent  to  an  express  prom- 
ise to  the  plaintiff  that  they  would  pay  the  money  to  him 
( Weston  v.  Barker,  12  Johns.  276),  and  so,  in  the  most  strict  and 
literal  sense,  .it  was  money  received  to  his  use.  Israel  v. 
Douglass,  1  H.  Black,  229  ;  Ward  v.  Evanst,  2  Raymond,  928 ; 
S.  C.  6  Modern  R.  36.  It  came  into  the  hands  of  the  defendants, 
accompanied  by  a  special  direction  from  Sawyer,  to  whom  it 
belonged,  to  pay  it  to  the  plaintiff,  and  under  such  circumstan- 
ces it  is  well  settled,  that  an  action  may  be  maintained  by  the 
person  to  whose  use  the  money  has  been  received.  De  Bernalis 
v.  Fuller,  U  East,  590,  note,  S.  C. ;  2  Camp.  K  P.  C.  426  ;  Bar 
leer  v.  Birch,  3  Id.  109  j  Tfierasson  v.  McSpedon,  2  Hilton,  1 ; 
Del.  (&  Hud.  Canal  Co.  \.  Westcfiester  Co.  B'k.,  -4  Denio,  97, 
and  cases  cited.  This  right  does  not  depend  upon  a  considera- 
tion moving  from  the  party  who  brings  the  action,  it  being  only 
necessary  that  the  promise  shall  be  founded  upon  some  valid 
consideration  moving  from  the  person  entitled  to  the  money  at 
the  time  of  giving  the  direction.  Judson  v.  Gray,  17  Howard 
P.  R.  289;  affirmed  in  Court  of  Appeals.  ••  ., 

In  regard  to  the  point  taken  by  the  defendants  on  the  argu- 
ment before  us,  that  the  money  was  the  property  of  James  B. 
Mansfield,  and  therefore  did  not  belong  to  either  Sawyer  or  the 
plaintiff,  it  is  only  necessary  to  say  that  no  such  fact  was  es- 
tablished at  the  trial,  nor  was  it  set  up  in  the  answer  as  a  de- 


58  COURT  OF   COMMON  PLEAS. 

Thomas  v.  Wickmann. 

fence.  Besides,  the  defendants,  as  I  have  before  remarked, 
received  the  money  upon  the  trust  that  they  would  pay  it  to 
the  plaintiff,  and  therefore  could  not  relieve  themselves  from 
the  obligation  thus  assumed  by  setting  up  a  pretended  claim 
on  behalf  of  some  third  person.  If  upon  sufficient  grounds, 
they  considered  such  claim  valid,  their  proper  course  was  to  in- 
terplead  the  person  making  it,  and  bring  the  money  into  court ; 
leaving  the  several  claimants  to  litigate  their  rights  respecting 
it.  Atkinson  v.  Manks^  1  Cowen,  691 ;  Shaw  v.  Coster,  8 
Paige,  339  ;  Bedell  v.  Ho/man,  2  Paige,  199 ;  Code,  §  122. 

Judgment  affirmed. 


MARGARET  THOMAS  v.  ALBERT  WIOKMAJWT. 


Where  by  the  terms  of  a  contract  of  sale  of  real  estate,  a  day  is  fixed  for  the 
payment  of  money  by  the  vendee,  and  the  delivery  of  a  deed  by  the  vendor, 
the  vendor  is  bound  to  seek  the  vendee  and  tender  the  deed,  or  by  some  act 
call  upon  him  to  perform  his  contract,  before  he  can  place  the  vendee  in 
such  a  position  as  will  work  a  forfeiture  of  a  sum  paid  on  account  of  the 
purchase  price. 

The  fact  that  the  vendee  quits  the  premises  before  the  day  agreed  upon  for 
the  delivery  of  the  deed,  does  not  absolve  the  vendor  from  his  obligation  to 
tender  a  deed,  if  he  wishes  to  put  an  end  to  the  contract. 

And  the  vendee  having  subsequently  made  a  tender  of  performance  of  his 
part  of  the  contract  may,  on  refusal  of  the  vendor  to  deliver  a  deed,  recover 
a  sum  paid  under  the  contract. 

A  declaration  by  the  vendee's  attorney,  made  prior  to  the  day  on  which  the 
title  was  to  be  passed,  that  the  vendee  did  not  want  the  title — Held,  no  ev- 
idence that  the  vendee  did  not  intend  to  complete  the  contract  on  the  day 
specified  in  the  contract ;  and  would  not  excuse  the  vendor's  default  to 
perform  or  tender  a  performance  of  his  part. 

In  an  action  by  a  married  woman  to  recover  money  paid  by  her,  the  question 
whether  the  money  so  paid  was  her  separate  property  or  not,  is  one  of  fact 
which  it  is  proper  to  submit  to  a  jury. 


NEW  YOKK— MAY,  1861.  59 


Thomas  v.  Wickmann. 


APPEAL  by  the  defendant  from  a  judgment  of  the  Fifth  Dis- 
trict Court. 

The  action  was  brought  by  plaintiff,  a  married  woman,  to 
recover  the  sum  of  one  hundred  and  fifty  dollars,  paid  by  her 
to  the  defendant  on  account  of  a  purchase  of  real  estate.  The 
further  sum  of  eight  hundred  and  fifty  dollars  was  to  be  paid 
a  month  later,  when  a  mortgage  was  to  be  given  for  the  bal- 
ance of  the  purchase  price,  and  the  defendant  was  to  deliver 
his  deed.  The  plaintiff  entered  into  possession  ;  but  prior  to 
the  day  agreed  upon  when  the  deed  was  to  be  delivered,  the 
money  paid  and  the  mortgage  executed,  she  abandoned  the 
premises. 

The  day  agreed  upon  to  close  the  business  having  passed,  the 
defendant  resumed  possession  of  the  premises,  without  making 
a  tender  of  any  deed.  Subsequently,  the  plaintiff  made  a  ten- 
der of  the  money  to  be  paid,  and  of  a  mortgage.  The  defen- 
dant declined  to  deliver  a  deed,  or  to  refund  the  one  hundred 
and  fifty  dollars  paid  by  the  plaintiff. 

The  plaintiff  obtained  judgment,  and  the  defendant  appealed 
to  the  Common  Pleas. 

The  grounds  of  the  appeal  are  fully  stated  in  the  opinion  of 
the  Court. 

Philip  S.  CrooJce  for  appellant. 

I.  The  sum  paid  by  the  plaintiff  was  abandoned,  and  for- 
feited by  her;  and  no  action  lies  to  recover  it  back.     Hunt  v. 
Siek,  5  East,  449 ;  JSeavan  v.  McDonnell,  26  Eng.  L.  and  E. 
540. 

II.  The  money  was  the  property  of  plaintiff's  husband,  and 
this  was  not  a  question  of  fact  for  the  jury. 

John  Anderson,  Jr.  for  respondent. 

BY  THE  COURT. — BBADT,  J. — The  money  paid  by  the  plain- 
tiff was  borrowed  by  her,  and  the  fact  also  was  shown  that 
she  had  deposited  in  bank  a  sum  of  money  given  to  her  by  her 
father,  and  which  she  had  continued  to  hold  as  her  separate 


60  COURT  OF  COMMON  PLEAS. 

Thomas  v.  Wickmann. 

estate.  It  belonged  to  her, therefore.  There  is  no  evidence  in 
the  case  to  show  the  husband's  liability  for  the  money  thus 
borrowed,  or  that  he  ever  had  it  in  his  possession,  and  there 
are  no  facts  or  circumstances  from  which  it  may  be  inferred 
that  such  money  was  his.  If  a  right  of  action  to  recover  it  ex- 
isted in  any  person,  it  was  in  the  plaintiff.  The  charge  of  the 
justice,  therefore,  that  whether  the  money  was  her  separate 
property  or  not,  was  a  question  of  fact,  was  not  exceptional,  be- 
cause it  could  by  no  possibility  have  injured  the  defendant. 
It  was  more  favorable  to  him  than  was  warranted  by  the  facts 
proved.  By  the  contract  of  sale,  the  plaintiff  was  to  execute 
a  mortgage  to  secure  the  sum  of  seven  hundred  and  fifty  dol- 
lars, and  was  to  pay  eight  hundred  and  fifty  dollars  on  the  de- 
livery of  the  deed,  on  or  before  the  26th  July,  1859.  She 
took  possession  of  the  premises  on  the  day  after  the  contract 
was  made,  29th  June,  1859,  but  abandoned  the  premises  prior 
to  the  26th  July  following,  when  the  deed  was  to  be  delivered. 
The  defendant,  after  that  day,  assuming  that  the  plaintiff  was 
in  default,  took  possession  of  the  premises,  and  made  repairs 
at  his  own  expense.  He  did  not  seek  the  plaintiff,  and  tender 
a  deed,  or  by  any  other  act. -call  upon  her  to  perform  her  con- 
tract, or  place  her  in  such  a  position  that  unless  she  did  per- 
form her  agreement,  she  would  forfeit  the  sum  paid.  Subse- 
quently the  plaintiff,  through  her  attorney,  offered  or  tendered 
the  money,  eight  hundred  and  fifty  dollars  and  the  mortgage, 
and  demanded  a  deed  or  the  money  paid.  The  defendant  de- 
clined to  give  either.  On  these  facts  the  plaintiff  was  entitled 
to  judgment.  The  plaintiff  was  not  in  default.  She  had  not 
been  tendered  the  deed,  and  by  the  terms  of  the  contract,  she 
was  not  to  pay  the  balance  of  the  consideration,  or  give  a 
mortgage,  until  the  deed  was  delivered.  The  removal  from 
the  premises  did  not  absolve  the  defendant  from  his  obligation 
to  tender  a  deed,  if  he  wished  to  put  an  end  to  the  contract. 
He  could  not  hold  the  money  paid,  unless  the  plaintiff  was 
in  default.  It  is  well  settled  (JEWETT,  J.),  that  where  the  cov- 
enants between  the  parties  are  mutual,  and  both  are  to  perform 
at  the  same  time,  neither  party  can  maintain  an  action  until  he 
has  performed,  or  tendered  performance  of  his  part  of  the 
agreement.  Williams  v.  Healy,  3  Denio,  363  ;  Ddkln  v.  Wil- 
liams, 11  Wend.  68  ;  2  Parsons  on  Contracts,  41,  note  e.  The 


NEW  YOKE— DECEMBER,  1859.  61 

Bailey  v.  Johnson. 

defendant  having  failed  and  refused  to  perform,  was  himself 
in  default,  and  could  not  withhold  the  money.  He  seems  to 
rely,  however,  on  the  declaration  of  Mr.  Anderson,  the 
attorney-at-law  of  the  plaintiff,  made  on  the  15th  of  July,  1859, 
that  "  she  did  not  want  the  title  " ;  but  assuming  that  such  was 
the  fact,  it  is  no  evidence  to  show  that  she  did  not  want  it  on 
the  26th  of  July,  1859,  until  which  day  she  had  to  complete 
her  contract.  Whether  the  declaration  of  Mr.  Anderson  was  a 
conclusion  of  his  own  or  the  avowed  wish  of  the  plaintiff  does 
not  appear. 
I  think  the  judgment  should  be  affirmed. 


THOMAS  BAILEY  v.  WILLIAM  L.  JOHNSON,  JOSIAH  H.  BURTON, 
WARREN  BEMAN  AND  MAHLON  D.  OODKN. 


In  an  action  brought  by  a  sub-contractor  to  enforce  a  lien  claimed  to  have 
been  acquired  under  the  mechanics'  lien  law  of  1851,  it  must  appear  by  the 
complaint, 

1.  That  labor  or  materials  have  been  furnished  in  the  erection  of  the 
building,  in  conformity  with  the  contract  made  by  the  original  contractor 
with  the  owner. 

2.  That  within  six  months  thereafter,  a  notice  in  writing,  under  the  sixth 
section  of  the  act,  claiming  a  lien  for  the  work  or  materials  thus  furnished, 
was  filed  with  the  county  clerk. 

8.  That  at  the  time  of  filing  the  notice  of  lien,  or  subsequently,  a  payment 
was  due  or  has  since  become  due  from  the  owner  to  the  contractor  upon  the 
original  contract. 

4  That  the  contracting  owner  had  some  interest  in  the  property  at  the 
time  the  notice  claiming  the  lien  was  filed. 

Where,  in  an  action  to  enforce  a  mechanic's  lien,  the  complaint  fails  in  any  of 
the  foregoing  requisites,  a  motion  to  dismiss  at  the  trial  is  proper,  and  will 
be  granted. 


62  COURT  OF  COMMON  PLEAS. 

Bailey  v.  Johnson. 

A  bona-fide  purchaser  of  the  premises  before  the  filing  of  notice  of  the  lien, 
cannot  be  "  chargeable  "  with  such  notice. 

Although  as  to  some  defects,  a  complaint  may  be  amended  at  the  trial  in  fur- 
therance of  justice,  yet  where  it  cannot  be  amended  without  changing  the 
form  of  action,  the  amendment  will  not  be  allowed. 

Where,  in  a  proceeding  instituted  by  a  sub-contractor  under  the  mechanics'  lien 
law  of  1851,  it  appears  by  the  complaint,  and  by  the  facts  admitted  by  the 
counsel,  that  no  lien  can  be  established,  a  motion  for  leave  to  amend  the  pro- 
ceeding into  an  ordinary  action  for  the  recovery  of  money,  against  the  con- 
tractor, will  be  denied. 

An  application  for  leave  to  amend  a  pleading  at  the  trial,  is  addressed  to  the 
favor  of  the  Court,  and  its  disposition  is  not  the  subject  of  review  upon  ap- 
peal. 

It  seems  that  the  plaintiff  has  a  right  to  prove  the  ownership  of  the  party 
charged,  however  numerous  the  record-evidences  are  to  the  contrary,  pro- 
vided that  those  evidences  were  created  for  the  purpose  of  defrauding  him, 
or  defeating  claims  arising  under  the  lien  law. 


Where,  in  an  action  to  enforce  a  mechanic's  lien  against  several  defendants  who 
appeared  by  the  same  attorney,  the  complaint  was  dismissed  on  motion,  on 
the  ground  that  it  did  not  contain  facts  sufficient  to  constitute  a  cause  of 
action,  without  any  trial  of  the  issues  raised  by  the  answers,  and  it  did  not 
appear  that  their  defences  were  such  as  could  not  have  been  joined, — 
Held,  that  separate  bills  of  costs  should  not  be  allowed  to  these  defendants. 

THE  issues  in  this  action  came  on  to  be  tried  before  Judge 
DALY,  without  a  jury,  on  the  24th  and  25th  days  of  Feb- 
ruary, 1859. 

The  defendants  severally,  by  their  respective  attorneys, 
moved  to  dismiss  the  complaint,  on  the  ground  that  it  did  not 
state  facts  sufficient  to  constitute  a  cause  of  action. 

The  Court  ruled  and  decided  that  the  complaint  was  insuffi- 
cient ;  to  which  ruling  and  decision  the  counsel  for  the  plain- 
tiif  excepted. 

The  plaintiff's  counsel  then  asked  leave  to  amend ;  but  the 
Conrt  denied  the  motion,  and  held  that  although  as  to  some 
defects,  the  complaint  might  perhaps  be  amended  in  further- 
ance of  justice,  yet,  that  as  to  other  defects,  it  could  not  be 
amended  without  changing  the  form  of  action.  To  which  the 
plaintiff's  counsel  excepted. 

The  counsel  for  the  plaintiff  then  asked  leave  to  go  on  and 
prove  his  claim  against  William  L.  Johnson,  with  a  view  to 


NEW  YORK— DECEMBER,   1859. 


Bailey  v.  Johnson. 


take  judgment  against  him  as  contractor  under  the  law  of 
1855.  The  Court  ruled  that  the  plaintiff  could  not  recover 
judgment  against  the  contractor,  and  to  this  decision  the  coun- 
sel for  the  plaintiff  excepted.  The  plaintiff  appeals  to  the 
general  term.  The  facts  upon  which  the  action  was  founded 
will  appear  in  the  opinions. 

H.  JBrcwster,  fo*  appellant. 

L  A  motion  to  dismiss  the  complaint  without  proofs  should 
not  be  encouraged,  because  if  the  complaint  does  not  show  a 
cause  of  action,  the  defendant  should  demur.  On  demurrer 
the  party  will  be  admonished  to  examine  all  delects,  and  has 
then  a  right  of  amending  for  twenty  days  without  costs.  (Code, 
§  1T2.) 

II.  The  Court  should  only  dismiss  a  complaint  on  trial,  for 
the  reason  that  there  appears  clearly  to  be  a  defective  cause  of 
action,  and  not  a  cause  of  action  defectively  stated,  even  if 
there  be  an  omission  of  material  averments. 

III.  The  only  point  argued  on  the  motion  below  was  that 
the  complaint  showed  the  plaintiff  could  not  recover,  because 
it  appeared  that  Burton  had  conveyed  to  Leeds. 

On  this  we  say,  that  the  allegations  show  that  Beman  had  an 
interest,  and  was  real  owner,  and  that  the  Court  could,  and 
should,  look  through  the  disguises  thrown  around  the  title  to 
try  to  escape  the  lien  law. 

The  owner  within  the  lien  law  is  not  the  person  in  whose 
name  the  legal  title  stands.  Loonie  v.  Hogan,  2  E.  D.  Smith, 
681 ;  Nott  on  the  Lien  Law,  page  100.  Therefore,  as  some 
one  must  be  owner,  it  is  he  for  whom  the  building  is  erected. 

In  this  case  the  house  was  built  by  Beman  for  himself;  he 
was  owner  by  purchase,  and  Leeds  held  for  him  and  for  his 
benefit.  Lemen  v.  Whitney,  4  Russell  Ch.  Rep.  423 ;  Story 
Equity,  sec.  1197 ;  3  Rev.  Stat.  5  ed.,  page  52. 

IV.  The  complaint  charges  that  Ogden  purchased  with 
notice  of  our  lien,  which  was  filed  28th  day  of  September, 
1857,  and  that  the  premises  were  conveyed  to  him  in  Feb- 
ruary, 1858. 


64  COURT  OF  COMMON  PLEAS. 

Bailey  v.  Johnson. 

V.  The  plaintiff  should  have  been  allowed  to  amend  ;  and, 
in  some  cases,  it  is  so  much  a  matter  of  positive  right  that  it 
is  error  to  refuse  it.      Vide  Catlin  v.  Gunter,  1  Kernan,  368. 
And  when  the  Statute  of  Limitation  has  run,  the  Court  go  very 
far  to  relieve  by  amendment.     Miller  v.  Watson,  6  Wend. 
506.     In  this  case  the  right  to  commence  an  action  ended  on 
the  28th  day  of  September,  1858. 

VI.  The  plaintiff  should  have  been  allowed  to  take  judg- 
ment against  Johnson,  the  contractor,  under  §  5  of  the  Statute 
of  1855,Laws  1855,  page  751.    In  Grogan  v.  The  Mayor,  &c., 
2  E.  D.  Smith,  693,  the  plaintiff  was  allowed  to  take  judgment 
against  Patrick  McAuliffe,   the    contractor.     See  Ryan  v. 
O'Brien,  before  BRADY,  Judge,  February  Term,  1859 ;  Grogan 
v.  McMaTwn,  4  E.  D.  Smith,  754. 

Andrew  H.  Green,  for  respondent  Mahlon  D.  Ogden. 

I.  The  complaint  does  not  contain  facts  sufficient  to  consti- 
tute a  cause  of  action.  It  attempts  to  set  forth  two  causes  of 
action  against  different  sets  of  defendants.  One  under  the 
Mechanics'  Lien  Law  and  the  other,  to  set  aside  certain  deeds 
on  equitable  grounds.  The  statement  of  facts  is  insufficient  to 
constitute  either  of  these.  These  causes  of  action  do  not  belong 
to  one  class.  Neither  of  them  affect  all  the  parties  to  the 
action;  and  they  are  not  separately  stated.  Code,  §  167; 
Laws  1855,  page  955,  §  8  ;  Lexington  R.  R.  v.  Goodman,  15 
How.  85.  (1.)  As  constituting  a  cause  of  action  under  the  Lien 
Law,  the  complaint  should  be  confined  to  the  parties  named  in 
the  notice  of  lien.  Laws  1851,  pages  953,  &c.,  §§  1,  4,  6,  8. 
(2.)  It  does  not  state  that  Ogden  was  the  owner  of  the  premises, 
nor  that  plaintiff  had  any  contract  with  Ogden  as  such  owner, 
nor  with  his  agent,  nor  that  plaintiff  performed  any  labor,  &c., 
in  pursuance  of  an  agreement  with  a  contractor,  with  Ogden, 
or  his  agent,  and  in  conformity  with  the  terms  of  such  contract, 
nor  that  such  contract  had  been  so  far  performed  as  was,  prima 
facie,  sufficient  to  entitle  the  contractor  to  recover,  had  he 
brought  his  action  for  the  same  cause,  nor  that  anything  was 
due  on  such  contract  Laws  1851,  p.  953,  §  1 ;  Dixon  v.  La- 
farge,  1  E.  D.  Smith,  724 ;  2d  Id.  662  ;  3d  Id.  625,  681,  717. 
(3.)  It  does  not  state  whether  the  contract  was  in  writing,  or 


NEW  YOKK— DECEMBER,   1859.  65 

Bailey  v.  Johnson. 

under  seal,  nor  how  it  was  modified,  nor  whether  the  labor  or 
materials  were  used  by  Ogden,  or  his  agent,  or  the  original  con- 
tractor, in  the  erection,  alteration,  or  repairing  of  the  building. 
Laws  1851,  p.  954,  §  3;  Walker  v.  Paine,  2  E.  D.  Smith. 
663.  (4.)  It  does  not  state  that  within  six  months  after  the  per- 
formance of  such  labor,  &c.,  Bailey  served  a  notice  in.  writing 
on  the  county  clerk,  specifying  Ogden  as  one  of  the  persons 
against  whom  his  claim  was  made.  Laws  1851,  p.  954,  §  6  ; 
Beats  v.  Congregation  Benai  Jeshurun,  1  E.  D.  Smith,  654.  (5.) 
It  does  not.  state  that  at  the  time  of  filing  the  notice  of  lien, 
Ogden  had  any  right,  title,  oj"  interest  in  the  premises  ;  nor  that 
Burton,  Beman,  or  Johnson,  the  ^nly  parties  named  in  said 
notice,  had  any  right,  title,  or  interest  in  said  premises.  Laws 
1851,  pp.  953,  954,  §  1,  6.  (6.)  The  claimant,  by  his  own  show- 
ing, had  no  valid  lien,  the  premises  having  been  previously' 
conveyed  to  Leeds.  And  his  contract  was  made,  and  work 
done,  after  such  conveyance  was  recorded.  (7.)  Plaintiff's  lien, 
if  any  was  created,  expired  when  judgment  was  rendered  iu 
this  action.  Laws  1851,  p.  956,  §§  9  and  12,  and  see  3  Corn- 
stock,  305.  Sullivan  v.  Brewster,  1  E.  D.  Smith,  682. 

II.  The  motion  to  amend  was  in  the  discretion  of  the  Judge, 
and  is  not  ground  of  exception.  To  sustain  an  exception  for  a 
refusal  of  the  Judge  at  the  trial  to  allow  an  amendment  of  the 
complaint,  the  party  must  show  a  clear  case  of  unquestionable 
right.  Roth  v.  Schloss,  6  Barb.  308  ;  Brown  v.  McCune,  5 
Sand.  224.  The  defects  are  not  amendable.  The  complaint 
cannot  be  amended  without  changing  the  form  of  action. 
Ogden  cannot  be  reached  without  an  action  to  set  aside  the 
deeds,  which  this  is  not,  and  it  cannot  be  changed  into  such  an 
actioi).  Leeds  would  be  a  necessary  party.  Foster  v.  Poillon, 
2  E.  D.  Smith,  556  ;  Quimby  v.  Sloan,  ib.  594 ;  Sinclair  v. 
Fitch,  3  E.  D.  Smith,  691 ;  Peck  v.  Ward,  3  Duer,  64T. 

F.  C.  Castine,  for  other  respondents. 

BY  THE  COUET. — HILTON,  J. — I  am  convinced  that  it  is  im- 
possible, in  any  brief  manner,  to  convey  an  intelligible  idea  of 
what  the  complaint  in  this  action  really  is.  As  nearly  as  I  can 
understand  from  the  mass  of  rambling  and  incoherent  matter 
witli  which  it  is  stuffed,  the  intent  of  the  pleader  was,  to  allege 


CG  COUET  OF  COMMON"  PLEAS. 

Bailey  v.  Johnson. 

that  the  defendants,  Barton  and  Beman,  being  the  owners  of 
lot  No.  7,  37th  street,  in  this  city,  contracted  with  the  defen- 
dant Johnson  to  do  the  carpenter  work  of  the  building  erected 
thereon  ;  and  Johnson  employed  the  plaintiff  to  perform  a  por- 
tion of  this  work.  Accordingly,  between  July  1st  and  Sep- 
tember 25th,  1857,  work  and  materials  were  furnished  by  the 
plaintiff  towards  the  building,  amounting  in  value  to  $450. 

On  September  28th,  1857,  this  sum  being  due  and  unpaid,  the 
plaintiff  filed  with  the  county  clerk  of  New  York,  a  notice  in 
due  form,  to  constitute  a  lien  on  the  premises  under  the  sta- 
tute respecting  mechanics'  liens,  passed  in  1851,  and  the  act 
amending  the  same  ;  claiming  against  Johnson,  as  contractor, 
and  Beman  and  Burton,  as  owners.  That  a  notice  to  them  to 
appear  and  account  and  a  bill  of  particulars  had  been  duly 
served,  according  to  the  statute. 

It  is  then  alleged,  that  Burton,  who  held  the  title  to  the  pro- 
perty, had  conveyed  it,  without  any  consideration,  however,  to 
one  George  Leeds,  who,  subsequently,  at  the  request  of  Be- 
man, conveyed  it  to  the  defendant  Ogden,  to  secure  the  pay- 
ment of  certain  moneys  due  to  him  from  the  defendant  Dern- 
ing,  who  caused  this  conveyance  to  be  made. 

That  owing  to  these  conveyances,  and  the  fact  that  the  title 
or  record  to  the  property  not  being  in  Beman,  the  plaintiff 
fears  that  unless  Ogden  and  Deming  are  parties,  it  may  be 
conveyed  to  some  innocent,  purchaser,  and  his  lien  endangered 
thereby.  That  Deming  purchased  with  notice  of  the  plaintiff's 
lien  and  claim,  and  Ogden  is  chargeable  with  like  notice. 
Then,  after  stating  that  no  personal  claim  is  made  against  Bur- 
ton, Ogden,  or  Deming,  judgment  is  demanded  against  John- 
son for  $450  and  interest.  Also  that  the  plaintiff  may  be 
declared  to  have  a  valid  lien  on  the  title  and  interest  which  Bur- 
ton and  Beman  had  in  the  premises  on  September  25th,  1857, 
when  the  notice  of  lien  was  filed ;  and  that  the  same  may  be 
foreclosed  and  sold  under  decree  of  this  Court,  and  the  claims 
and  rights  of  Deming  and  Ogden,  under  either  Burton  or  Beman 
may  be  foreclosed  as  against  the  claim  of  the  plaintiff;  conclud- 
ing with  a  desire  for  further  relief  as  his  case  requires. 

This,  certainly,  is  a  novel  pleading  ;  and  taken  in  connection 
•with  the  admission  made  by  the  plaintiff's  counsel  on  the  argu- 
ment, that  the  conveyance  to  Leeds  was  made  prior  to  the 


NEW  YORK— DECEMBER,   1859.  67 

Bailey  v.  Johnson. 

filing  of  the  notice  of  lien,  that  is,  prior  to  September  28,  18,57, 
renders  it  somewhat  doubtful  as  to  what  particular  class  of 
actions  such  a  pleading  belongs.  The  defendants  seem  to  have 
met  it  by  denying  nearly  every  word  in  it,  instead  of  demur- 
ring to  it.  But  at  the  trial,  the  objection  was  taken,  that  it  did 
not  state  facts  sufficient  to  constitute  any  cause  of  action. 

In  this  view  Judge  DALY  concurred,  and  he  dismissed  the 
complaint,  declining  to  permit  it  to  be  amended,  on  the  ground 
that  it  could  not  be  done  without  changing  the  form  of  the  action. 

The  plaintiff  then  asked  that  he  be  permitted  to  prove  his 
claim  against  the  contractor  Johnson,  with  a  view  to  taking 
judgment  against  him  ;  but  this  also  was  refused.  Exception 
having  been  taken  to  these  rulings,  the  plaintiff  asks  for  their 
review  on  this  appeal.  To  determine  as  to  their  correctness, 
it  will  be  necessary  to  see  what  facts  are  required  to  be  alleged 
and  proved  in  an  action  brought  by  a  sub-contractor  to  enforce 
a  lien  claimed  to  have  been  acquired  under  the  law  of  1851, 
referred  to  in  this  complaint.  The  numerous  decisions  which 
thjs  Court  has  made  in  respect  to  this  law,  show  that  to  estab- 
lish a  lien  under  it,  by  a  sub-contractor,  there  must  appear, 
1st.  That  labor  or  materials  have  been  furnished  in  the  erection 
of  the  building  in  conformity  with  the  contract  made  by  the 
original  contractor  with  the  owner.  2d.  That  within  six  months 
thereafter,  a  notice  in  writing,  under  the  6th  section  of  the  act, 
claiming  a  lien  for  the  work  or  materials  thus  furnished,  has 
been  filed  with  the  county  clerk.  3d.  That  at  the  time  of  filing 
the  notice  of  lien,  or  subsequently,  a  payment  was  due,  or  has 
since  become  due,  from  the  owner  to  the  contractor,  upon  the 
original  contract  4th.  That  the  contracting  owner  had  some 
interest  in  the  property  at  the  time  the  notice  claiming  the  lien 
was  filed.  Foley  v.  Algcr,  4:  E.  D.  Smith,  719  ;  Cox  v.  Bro- 
derick,  Id.  721 ;  Dennistoucn  v.  McAlister,  Id.  729 ;  Ferguson 
v.  Burk,  Id.  760 ;  Roberts  v.  Fowler,  3  Id.  632 ;  Cunningham 
v.  Jones,  Id.  650 ;  Cmklin  v.  Wood,  Id.  662 ;  Jackson  v. 
Sloan,  2  Id.  616  ;  Carman  v.  McLicrow,  Id.  689 ;  Foster  v. 
Poillon,  Id.  556;  Doughty  v.  Devlin,  1  Id.  625;  Sulli- 
van v.  Brewster,  Id.  681.  Judged  by  these  views  of  the 
requirements  of  the  law,  and  assuming,  as  I  think  I  must,  that 
this  action  is  to  be  regarded,  not  as  one  of  an  equity  character, 
but  as  a  proceeding  to  enforce  a  mechanics'  lien  by  a  sub-con- 


68  COURT  OF  COMMON  PLEAS. 

Bailey  v.  Johnson. 

tractor,  it  will  be  perceived  that  this  complaint  did  not  show  a 
cause  of  action  entitling  the  plaintiff  to  any  relief  whatever. 
Not  only  was  the  necessary  allegation  in  respect  to  a  payment 
being  due  from  the  owner  to  the  contractor  at  the  time  of  filing 
the  notice,  or  that  any  payment  had  since  become  due,  entirely 
omitted,  but  in  addition,  it  is  conceded  that  before  the  notice 
of  lien  was  filed,  the  contracting  owners  had  parted  with  all 
their  interest  in  the  property,  and  it  is  not  intimated  that 
Ogden,  the  present  owner,  did  become  such,  otherwise  than  in 
entire  good  faith.  Under  such,  a  state  of  facts,  it  was  impossi- 
ble for  the  plaintiff  to  have  acquired  any  lien  upon  the  pre- 
mises, and  the  complaint  was  therefore  properly  dismissed. 
Cox  v.  Broderick,  4:  E.  D.  Smith,  721.  Ogden  could  not,  in  the 
language  of  the  complaint  "be  chargeable  "  with  notice  of  the 
plaintiff's  lien  before  any  proceedings  had  been  taken  to 
acquire  it ;  and  as  it  is  not  pretended  that  he  was  other  than  a 
l>ona-Jide  purchaser  of  the  property,  I  do  not  see  how  his  inter- 
ests could  be  affected  by  any  knowledge  he  might  be  "  charge- 
able "  with,  in  respect  to  the  plaintiff's  "  claims."  Sinclair  v. 
Fitch,  3  E.  D.  Smith,  677 ;  Crystal  v.  Flannelly,  2  Id.  5$3. 
And  as  no  lien  could  be  established  upon  the  statements  in  the 
complaint,  and  the  conceded  fact  already  referred  to,  the  plain- 
tiff was  properly  refused  permission  to  correct  his  proceeding, 
which  had  originally  been  instituted  under  the  law  in  question, 
into  an  ordinary  action  for  the  recovery  of  money  against  the 
contractor.  Quiniby  v.  Sloan,  2  E.  D.  Smith,  594.  But  in 
addition  to  this,  the  application  for  leave  to  amend  was  ad- 
dressed to  the  favor  of  the  Court,  and  its  disposition  is  not  the 
subject  of  review  upon  appeal.  Hatfield  v.  Secor,  1  Hilton, 
536. 
Judgment  should  be  affirmed. 

DALY,  F.  J. — I  concur. 

BRADY,  J. — The  plaintiff's  claim  is  based  upon  the  fact  that 
Beman  and  Burton  were,  at  the  time  of  the  contract  with  John- 
son, the  owners  of  the  lot  mentioned  in  the  complaint,  and  that 
they  continued  to  be  the  owners  in  fact,  down  to  the  time  of 
the  commencement  of  this  action,  notwithstanding  the  convey- 
ances to  Deming,  Leeds  and  Ogden ;  and  this  conclusion 


NEW  YORK— DECEMBER,    1S59.  69 

Bailey  v.  Johnson. 

eeems  to  be  predicated  of  the  fact  that  Deming,  Leeds  and 
Ogden  were  not  purchasers  for  a  valuable  consideration,  and, 
with  the  exception  of  Ogden,  were  only  the  instruments  of  Be- 
raan  and  Burton  employed  to  avoid  the  lien,  having  accepted 
their  conveyances  with  full  knowledge  of  all  the  facts  and  cir- 
cumstances alleged,  and  being  privy  to  the  design  of  Beman 
and  Burton,  and  that  as  to  Ogden,  his  conveyance  was  given  to 
secure  a  debt,  but  was  received  with  notice  or  knowledge,  or 
that  from  some  facts  and  circumstances  he  was  legally  charge- 
able with  like  knowledge.  As  one  of  the  questions  in  cases 
based  upon  the  lien  law  must  necessarily  be  whether  the 
person  charged  as  owner  is  in  fact  the  owner,  I  think  the  de- 
fendant has  a  right  to  prove  that  fact,  however  numerous  the 
record  evidences  are  to  the  contrary  ;  provided  those  evidences 
•  were  created  for  the  purpose  of  defrauding  or  defeating  claims 
arising  under  that  law.  I  think,  however,  that  in  this  case  the 
plaintiff  has  failed  to  make  out  a  cause  of  action  by  his  com- 
plaint, the  averments  of  which  do  not  present  such  a  case  as  I 
have  suggested.  I  think  also,  that  when  an  appeal  is  taken 
from  the  refusal  of  a  judge  to  permit  an  amendment  of  the 
pleadings,  the  contemplated  amendment  should  be  set  out,  to 
enable  the  reviewing  tribunal  to  see  clearly  that  no  right  has 
been  violated.  This  the  appellant  has  failed  to  do.  The  judg- 
ment for  the  reasons  assigned  by  Judge  HILTON  must  be  af- 
firmed. 
Judgment  affirmed. 


In  this  case,  afcer  judgment  of  affirmance,  the  defendants 
sought  to  tax  their  costs  separately.  The  clerk  allowed  them 
to  do  so,  and  the  Court  at  special  term  having  determined  that 
he  did  right,  the  plaintiff  appealed. 

BY  THE  COURT. — HILTON,  J. — This  action  was  brought  to 
foreclose  a  mechanics'  lien  against  the  defendant  Johnson,  as 
contractor,  and  the  defendants  Burton  and  Beman,  as  owners. 
Others  were  parties  to  the  action  also,  but  for  the  purpose  of 
this  appeal  it  is  unnecessary  to  refer  to  them.  Separate  de- 
fences were  interposed  by  the  same  attorney  for  the  contractor 


TO  COURT   OF  COMMON  PLEAS. 

Bailey  v.  Johnson. 

and  owners.  On  the  cause  being  called  for  trial,  application 
was  made  for  a  dismissal  of  the  complaint,  on  the  ground  that 
it  did  not  contain  facts  sufficient  to  constitute  a  cause  of  action. 
This  view  was  concurred  in  by  the  Court,  and  the  complaint 
was  accordingly  dismissed  with  costs. 

The  clerk  allowed  to  these  defendants  separate  bills  of  costs, 
and  the  Court  at  special  term  having  determined  that  he  did 
right,  the  plaintiff  appeals. 

On  reflection  I  am  satisfied  that  this  allowance  was  erroneous, 
and  ought  not,  under  the  peculiar  circumstances  of  this  case, 
to  be  sustained.  The  defendants  having  appeared  by  the  same 
attorney,  there  was  no  necessity  for  their  putting  in  separate 
defences,  as  the  complaint  was  clearly  insufficient  to  justify 
their  belief  that  any  recovery  could  be  had  upon  the  facts 
stated  in  it.  Besides,  they  were  not  put  to  the  trouble  or^ 
expense  of  establishing  their  separate  defences,  and  therefore 
cannot  be  said  to  have  sustained  that  expense,  for  which  costs 
'  are  given  as  an  indemnity.  Code,  Sec.  303. 

The  complaint  having  been  dismissed  without  any  trial  of 
the  issues  raised  by  the  answers,  seems  to  me  to  sufficiently 
establish  the  fact,  that  the  defences  were  of  a  nature  that  could 
have  been  joined,  as  the  only  question  presented  at  the  trial 
would  have  arisen  upon  a  demurrer  interposed  in  their  joint 
behalf.  Jffatt  v.  Lindo,  8  Abbott  JPr.  R.  341. 

For  these  reasons,  I  think  the  order  made  by  me  at  special 
term  should  be  reversed,  and  the  clerk  directed  to  re-adjust 
the  costs  and  allow  but  one  bill  to  the  defendants  Burton,  Be- 
man,  and  Johnson. 

Ordered  accordingly.  No  costs  of  this  appeal  to  either 
party. 

DALY,  F.  J.,  and  BKADY,  J.,  concurred. 


YORK— DECEMBER,   1859.  71 


Richards  v.  Vanderpoel. 


JAMES  "W.  RICHARDS  v.  JACOB  YANDREPOEL. 


One  who  induces  another  to  part  with  his  property,  "  through  fright  and  fear 
of  being  locked  up,"  obtains  no  title,  and  the  transaction  is  void. 

Actual  imprisonment  is  not  necessary  to  avoid  such  a  transaction :  fear  of  im- 
prisonment is  enough. 

Where  the  arrest  was  illegal,  and  the  transfer  was  made  through  fear  of  im- 
prisonment, either  to  settle  a  civil  suit  then  pending  between  the  parties, 
or  to  compromise  the  alleged  felony,  the  result  is  the  same,  and  no  title 
passes. 

A  charge  that  if  the  jury  believed  that  the  person  arrested  "  voluntarily  gave  to 
the  defendant  the  watch  in  question,  then  their  verdict  must  be  for  the  de- 
fendant,"— Held,  error.  The  question  how  far  the  prisoner  was  affected  by 
fear  should  have  been  submitted  to  the  jury.  It  was  not  enough  to  submit 
to  them  whether  the  transfer  was  voluntary,  as  the  prisoner  might  have 
acted  voluntarily,  though  impelled  by  fear  of  imprisonment. 


APPEAL  by  plaintiff  from  a  judgment  of  the  Marine  Court  at 
general  term. 

The  principal  facts  are  .these:  One  Kinshimer  was  the 
owner  of  a  gold  watch  which  he  valued  at  $175  to  $200.  He 
was  the  agent  for  the  defendant,  and  had  collected  rents  for 
him.  Kinshimer  had  failed  to  hand  over  a  check  which  he 
had  received  for  those  rents,  and  the  defendant  commenced  a 
civil  action  for  the  recovery  of  the  debt.  On  the  fifth  day  of 
December,  1857,  the  defendant,  on  an  affidavit  before  a  police 
magistrate,  obtained  a  warrant  for  Kinsliimer's  arrest,  for  hav- 
ing, as  his  servant,  as  alleged  in  the  affidavit,  embezzled  a 
check  for  $350.  Kinsheimer  was  arrested  on  the  same 
day,  and  while  on  his  way  to  the  Tombs,  the  defendant 
asked  him  "to  settle  the  matter."  Kinsheimer  deliv- 
ered his  watch  to  the  defendant,  and  was  released  by  the 


72  COURT    OF  COMMON    PLEAS. 

Richards  v.  Vanderpoel. 

officer  who  arrested  him.  The  criminal  proceeding  was  not 
prosecuted.  Kinsheirner  testified  that  he  "  let  the  defendant 
have  the  watch  through  fright  and  fear  of  being  locked  up  in 
the  Tombs." 

Three  days  after,  Kinshimer  assigned  the  watch  to  the 
plaintiff  in  this  action,  who  brought  suit  to  recover  its  value, 
alleging  that  the  same  had  been  obtained  by  the  defendant 
"  by  force,  and  duress  of  imprisonment." 

The  plaintiff's  counsel  requested  the  Court  to  charge  the 
jury  the  following  propositions  severally. 

1st.  If  Mr.  Kinshimer  was  arrested  for  improper  purposes 
without  just  cause,  and  delivered  the  watch  in  question  to 
Vanderpoel  for  his  enlargement,  the  watch,  under  those  facts, 
was  delivered  by  duress  of  imprisonment,  arid  the  plaintiff 
may  recover  its  value  in  this  action. 

2nd.  If  Kinshimer  was  arrested  for  a  just  cause  and  under 
lawful  authority — but  his  arrest  was  procured  by  Yanderpoel 
for  the  purpose  of  obtaining  the  watch  or  obtaining  a  security 
for  a  debt,  and  Kinshimer  delivered  the  watch  to  Vanderpoei 
for  the  purpose  of  procuring  his  enlargement — the  plaintiff  has 
a  right  to  recover  the  value  of  the  watch  in  this  action. 

3rd.  If  the  arrest  of  Kinshimor  was  illegal,  and  he,  through 
fear,  delivered  the  watch  to  Vanderpoel  for  any  purpose,  those 
facts  constitute  duress,  and  the  plaintiff  is  entitled  to  re- 
cover. 

The  Court  thereupon  charged  the  jury,  and  the  following 
contains  so  much  thereof  as  embraces  the  exceptions  taken 
thereto : 

That  the  arrest  of  Kinshimer  was  illegal,  that  he  was  not  a 
servant  of  the  defendant,  but  an  agent,  an4  therefore  he  was 
not  a  servant  within  the  words  or  spirit  of  the  Statute  ;  that  the 
Court  was  the  sole  judge  of  the  law,  as  the  jury  were  of  the 
facts  ;  that  the  facts  were  few  and  simple  ;  and  if  the  jury  be- 
lieved Mr.  Kinshiiner  voluntarily  gave  to  the  defendant  the 
watch  in  question,  then  their  verdict  must  be  for  the  defen- 
dant ;  but  if  they  find  Kmshimer  did  not  voluntarily  deliver  the 
watch  to  the  defendant,  then  their  verdict  must  be  for  the 
plaintiff. 

The  plaintiff  excepted  to  so  much  thereof  as  charged  the  jury, 


NEW  YORK— DECEMBER,  1859.  73 

Richards  v.  Vanderpoel. 

that  if  Kinshimer  voluntarily  gave  the  defendant  the  watch  in 
question,  their  verdict  must  be  for  the  defendant. 

The  Court  refused  to  charge  either  of  the  foregoing  requests, 
and  as  to  each,  the  plaintiff  excepted. 

0.  Bainbridge  Smith,  for  appellant. 
jP.  Byrne,  for  respondent. 

BY  THE  COURT. — BRADY,  J.— The  plaintiff's  assignor,  E.  B. 
Kinshimer,  was  employed  by  the  defendant  as  his  agent,  to  col- 
lect the  rent  of  premises  on  Madison  avenue,  in  this  city.  On 
the  fifth  of  November,  1857,  as  such  agent,  he  received  a 
check  for  three  hundred  and  fiftydollars  from  the  defendant's 
tenant,  had  it  cashed,  and  used  the  proceeds  in  the  payment  of 
his  own  debts.  On  the  fifth  of  December,  1857,  having  prior 
thereto  endeavored  to  obtain  payment  of  the  sum  named,  from 
Kinshimer,  and  having  commenced  an  action  for  the  recovery 
thereof,  the  defendant  also  procured  a  warrant  for  his  arrest 
on  a  charge  of  embezzlement,  and  upon  an  affidavit  in  which 
the  defendant  alleged  that  Kinshimer  had  acted  as  his 
servant  in  collecting  rents,  and  had  collected  and  embezzled 
the  sum  named.  On  the  day  the  warrant  was  issued,  the 
defendant  and  an  officer  named  Spicer,  proceeded  to  the  vicin- 
ity of  the  residence  of  Kinshimer,  where,  about  four  or  five 
o'clock  P.  M.,  he  was  arrested,  almost  immediately  put  into 
one  of  the  Fourth  avenue  cars,  and  taken  in  that  mode  toward 
the  Centre  street  prison,  in  custody  of  Spicer,  and  accompanied 
by  the  defendant.  While  thus  in  custody,  and  as  he  says, 
through  fright  and  fear  of  being  locked  up  in  the  Toinbe,  he 
let  the  defendant  have  his  watch.  The  testimony  is  conflicting 
as  to  the  facts  and  circumstances  attending  the  delivery  of  the 
watch,  but  it  is  not  disputed  that  the  watch  was  offered  by 
Kinshimer  to  the  defendant,  and  accepted  by  the  defendant, 
while  Kinsltmer  was  in  custody  under  the  warrant  aforesaid, 
rind  soon  after  his  arrest.  There  is  also  evidence  in  the  case 
tending  to  establish  that  the  defendant  accepted  the  watch  only 
in  part  settlement,  of  the  civil  claim,  without  relinquishing,  or 
expressing  any  intention  of  abandoning  the  criminal  complaint. 
And  it  appears  that  that  complaint  after  a  hearing  before  the 


74  COUET  OF  COMMON  PLEAS. 

Richards  v.  Vanderpoel. 

magistrate  who  granted  the  warrant,  was  by  him  dismissed. 
The  judge  in  the  Court  below  charged  the  jury  that  the  arrest 
was  illegal,  inasmuch  as  Kinshimer  was  the  agent,  and  not  the 
servant,  of  the  defendant,  within  the  meaning  or  spirit  of  the 
statute  defining  or  declaring  the  crime  of  embezzlement,  but 
that  if  they  believed  that  Kinshimer  voluntarily  gave 
the  watch  to  the  defendant,  the  defendant  was  entitled 
to  a  verdict;  if  they  believed  he  did  not  voluntarily 
deliver  it  to  the  defendant,  then  their  verdict  must  be  for  the 
plaintiff.  To  the  charge  there  was  but  one  exception  which 
was  taken  by  the  plaintiff,  and  to  that  part  of  it  in  which  the 
jury  were  instructed,  that  if  the  watch  was  voluntarily  given, 
the  verdict  must  be  for  the  defendant.  The  plaintiff's  counsel, 
however,  made  three  requests  of  the  Court  to  charge  as 
follows : 

1.  If  Mr.  Kinshimer  was  arrested  for  improper  purposes 
without  just  cause,  and  delivered  his  watch  in  question  to  the 
defendant  for  his  enlargement,  the  watch  under  those  facts  was 
delivered  by  duress  of  imprisonment,  and  the  plaintiff  may  re- 
cover its  value  in  this  action. 

2.  If  Kinshimer  was  arrested  for  just   cause   and  under 
lawful  authority — but  his  arrest  was  procured  by  the  defendant 
for  the  purpose  of  obtaining  the  watch,  or  obtaining  from  him 
security  for  a  debt,  and  Kinshimer  delivered  the  watch  to  the 
defendant  for  the  purpose  of  procuring  his  enlargement — the 
plaintiff  has  a  right  to  recover  the  value  of  the  watch  in  this 
action. 

3.  If  the  arrest  of  Kinshimer  was  illegal,   and   he,   through 
fear,  delivered  the  watch  to  the  defendant  for  any  purpose, 
those  facts  constitute  duress,   and  the  plaintiff  is  entitled   to 
recover. 

The  Court  refused  to  charge  either  of  these  requests,  and  as 
to  each  refusal  the  plaintiff  excepted.  The  jury  found  for  the 
defendant.  It  is  said  by  BULLER  (Nisi  Prius,  172),  that  if 
duress  be  pleaded,  the  deed  is  admitted,  and  the  issue  lies 
upon  the  defendant ;  and  that  it  is  sufficient  if  it  appear  that  the 
arrest,  though  for  a  good  debt,  was  without  good  authority. 
And  in  Richardson  v.  Duncan,  (3  N".  Harnp.  508),  it  was  held 
that  an  arrest  for  a  just  cause,  and  under  lawful  authority,  if 
it  be  made  for  unlawful  purposes,  may  be  constituted  as  a 


NEW  YOKE— DECEMBER,   1859.  75 

Richards  v.  Vanderpoel. 

duress  so  as  to  avoid  a  contract  which  the  party  made  for  his 
deliverance.  (See  also  Severance  v.  K'nnball,  8  N.  Hamp. 
386.)  The  same  general  doctrine  is  also  declared  by  PARSONS, 
C.  J.,  in  Walkins  v.  Baird  (6  Mass.  511),  and  is  approved  in 
Foshay  v.  Ferguson  (5  Hill,  157).  In  Cost  v.  Phillips, 
reported  in  2  Leg.  Obs.  302  (a  case  in  the  Exchequer),  Phil- 
lips was  arrested  for  embezzlement,  and,  having  been  taken 
before  a  magistrate,  he  executed  jointly  with  one  Sparks,  who 
was  his  father-in-law,  a  bond  to  the  plaintiffs  for  the  amount 
of  the  moneys  embezzled.  Mr.  Lawston,  who  acted  as  the 
plaintiff's  attorney,  told  the  defendants  that  they  were  not  to 
consider  there  was  any  agreement  that  the  plaintiffs  should 
forego  the  prosecution  against  Phillips,  but  he  could  say  that 
Sparks  did  not  understand  that  the  consequence  of  giving  the 
bond  would  be  that  the  prosecution  should  be  relinquished. 
Lord  ABINGER  said  to  the  jury  that  the  plaintiff's  attorney 
saying  when  the  bond  was  executed,  that  it  was  not  to  be  con- 
sidered as  an  agreement  not  to  press  the  charge  against 
Phillips,  did  not  alter  the  nature  of  the  transaction.  The  ques- 
tion was,  what  the  parties  intended.  If  the  jury  believed  that 
the  plaintiff  meant,  upon  getting  the  bond,  to  forego  the  prose- 
cution against  Phillips,  and  that  Sparks  signed  under  that  belief 
and  expectation,  the  consideration  of  the  bond  was  illegal,  and 
the  jury  ought  to  find  a  verdict  for  the  defendants.  But,  as 
said  by  Judge  BBONSON  (in  Fosliay  v.  Ferguson),  in  the  view 
we  are  now  taking  of  the  case,  the  imprisonment  was  unlaw- 
ful, and  there  never  was  a  doubt  that  a  contract  obtained  by 
such  means  might  be  avoided.  This  case  would  seem,  also,  to 
be  different  from  the  cases  generally  which  relate  to  this  sub- 
ject, inasmuch  as  though  no  felony  in  fact  was  committed,  the 
basis  of  the  charge  against  Kinshimer  was  an  actual  indebted- 
ness to  the  defendant,  for  which  the  defendant  had  commenced 
a  civil  action.  To  the  extent  of  there  being  a  bona  fide,  undis- 
puted claim,  the  case  of  Cost  v.  Phillips  (supra},  seems  to  be 
the  same  as  the  case  in  hand.  If  the  arrest  in  this  case  was 
made  to  procure  a  settlement  of  the  claim  against  Kinshimer, 
then  I  have  no  doubt  that  on  the  principle  of  the  cases  referred 
to,  the  watch  was  improperly  obtained,  and  no  title  to  it  passed 
by  its  delivery  to  the  defendant.  Lord  COKE  says  that  fear  of 
imprisonment  is  enough,  and  as  illustrated  by  BKONSON,  J.,  in 


76  COUET    OF  COMMON   PLEAS. 

Richards  v.  Vanderpoel. 

Foshay.  v.  Ferguson  (supra),  the  rule  has  been  so  under- 
stood since  the  time  of  COKE!  If  the  imprisonment  appre- 
hended had  been  that  which  would  have  followed  arrest  on 
civil  process,  it  might  be  said,  in  the  absence  of  violence,  that 
the  settlement  contemplated  was  just,  and  should  not  be  dis- 
turbed. The  creditor  would  then  be  exercising  a  right  given 
by  the  law  of  the  land,  but  such  is  not  the  case  here.  The 
imprisonment  feared  was  one  following  an  arrest  upon  process 
which  was  not  issued  to  enforce  the  payment  of  the  claim,  but 
to  punish  for  an  offence  not  committed,  and  on  a  charge  which 
could  not  be  sustained.  The  fears  excited  were  those  induced 
by  this  process,  thus  unlawfully  obtained,  and  all  the  circum- 
stances disclosed  by  the  evidence  rendered  it  the  right  of  the 
plaintiff,  in  my  opinion,  to  have  the  third  request  complied 
with. 

If  the  arrest  of  Kinshimer  was  illegal,  and  he,  through 
fear  of  imprisonment,  gave  his  watch  to  the  defendant,  either 
to  compromise  the  alleged  felony,  or  to  settle  the  civil  suit,  the 
result  is  the  same.  No  title  passed,  and  the  plaintiff  was 
entitled  to  recover.  The  question  how  far  Kinshimer  was  af- 
fected by  fear  should  have  been  submitted  to  the  jury.  It  was 
not  enough  to  submit  to  them  whether  Kinshimer  voluntarily 
gave  the  watch  to  the  defendant.  He  might  have  voluntarily 
done  so.  impelled  by  fear  of  imprisonment.  The  defendant's 
position  was  a  false  one.  Kinshimer  was  in  his  power  by  pro- 
cess improperly  obtained,  and  he  could  not  avail  himself  of 
that  position,  or  anything  resulting  from  it.  It  was  a  mistake 
of  the  defendant's,  doubtless,  but  everything  derived  or  result- 
ing from  it  while  Kinshimer  was  under  that  influence,  should 
not  be  permitted  to  continue.  Whether  he  was  under  that 
influence  should  have  been  submitted  to  the  jury.  For  these 
reasons,  I  think  the  judgment  should  be  reversed. 
Judgment  reversed. 


NEW  YORK— AUGUST,   1860.  77 


Montegriffo  v.  Musti. 


PHILLTPPO  MONTEGRIFFO  v.  FELICE  MUSTI,  YINCENZO  SQUARZA, 
and  SALVATOBE  CABO. 

An  undertaking  given  pursuant  to  section  209  of  the  Code  of  Procedure,  in 
an  action  of  claim  and  delivery  of  personal  property,  conditioned  for  a  re- 
turn of  the  property,  if  a  return  should  be  adjudged,  and  for  the  payment 
of  such  sum  as  should,  for  any  cause,  be  recovered  against  the  plaintiff  in  the 
action,  is  substantially  one  for  the  payment  of  money. 

And  an  action  against  the  sureties  in  such  undertaking,  is  an  action  arising  on 
contract  within  section  129  of  the  Code,  and  a  summons  for  a  money  de- 
mand, in  such  an  action,  is  proper. 

APPEAL  by  the  defendant  from  an  order  made  at  Special 
Term  denying  a  motion  made  by  the  defendant  Caro  to  dis- 
miss the  complaint  on  the  ground  that  it  did  not  comply  with 
the  summons. 

The  notice  inserted  in  the  summons  states  that  the  plaintiff, 
on  a  failure  to  answer,  on  the  part  of  the  defendants,  will  take 
judgment  for  a  specific  sum.  The  complaint  served  set  forth 
a  cause  of  action  against  the  defendants  upon  a  bond  or  under- 
taking, made  by  the  defendant  Caro,  as  surety  for  another  de- 
fendant, in  an  action  to  recover  possession  of  certain  personal 
property. 

It  was  claimed  by  the  appellant  that  the  summons  should 
have  been  within  the  second  subdivision  of  section  129  of  the 
Code  of  Procedure  to  authorize  the  complaint  served. 

Henry  H.  Morange,  for  appellants. 
A.  C.  Fransioli,  for  respondent. 

BY  THE  COURT. — BRADY,  J. — The  defendant  Caro  undertook 
and  became  bound  to  the  plaintiff  for  the  return  of  the  prop- 
erty claimed  and  taken  by  Felice  Musti,  if  a  return  thereof 
should  be  adjudged,  and  for  the  payment  of  any  such  sum  as 
should,  for  any  cause,  be  recovered  against  Musti  in  the  action 
commenced  by  him,  and  in  which  the  undertaking  of  Caro 


78  COURT  OF  COMMON  PLEAS. 

Montegriffo  v.  Musti. 

was  given.  The  obligation  assumed  by  Caro  was  twofold, 
namely — to  return  the  property  taken  by  his  principal,  Musti, 
and  to  pay  any  amount  that  might,  for  any  cause,  be  recovered 
against  him,  which  covered  the  costs  allowed  by  the  statute,  if 
Musti  failed  in  the  action,  and  the  value  of  the  property,  if  he 
failed  to  return  it  after  judgment.  The  undertaking  is  sub- 
stantially one  for  the  payment  of  money.  The  statute  provides 
for  the  liquidation  of  the  damages  for  the  omission  or  neglect 
to  return  the  property  by  requiring  the  jury  to  assess  the 
value  of  the  property,  and  thus  the  pecuniary  obligation  of  the 
surety  is  determined  in  that  respect,  and  the  costs  and  allow- 
ance also  allowed  by  statute  determine  the  whole  extent  of  the 
surety's  liability.  What  is  the  plaintiff  to  recover,  if  the  prop- 
erty be  not  returned  ?  He  recovers  its  value.  Has  that  been 
ascertained  ?  It  has,  and  is  not  open  to  question.  It  is  a  thing 
determined.  The  principal  has,  then,  neglected  to  return  the 
property — the  sureties  have  neglected  to  return  the  prop- 
erty,  and  the  plaintiff  seeks  to  recover  its  valr.e.  There 
can  be  no  doubt  of  his  right  to  this  remedy.  The  Court 
has  adjudged  that  the  defendant  Musti  return  the  prop- 
erty taken  by  him,  or  pay  two  hundred  dollars,  which  was  its 
value  ;  and  having  neglected  to  return  it,  the  plaintiff  has  re- 
covered that  amount,  and  the  costs  in  the  action.  This  the 
sureties  undertook,  in  express  language,  to  pay,  and  the  plain- 
tiff has  stated  all  the  facts  necessary  to  establish  his  right  to 
the  amount  claimed.  Whether  the  defendants,  the  sureties, 
would  have  a  right  to  return  the  property  in  diminution  of  the 
amount  claimed  by  the  plaintiff,  it  is  not  necessary  to  decide 
on  this  appeal ;  but  it  is  very  clear  that  the  undertaking  of  the 
defendant,  Caro,  was  one  for  the  payment  of  money  on  the 
failure  of  his  principal,  Musti,  to  return  the  property  which  he 
took,  and  that  this  is  an  action,  in  the  language  of  section  129 
of  the  Code,  arising  on  contract,  and  for  the  recovery  of  money 
only.  No  other  relief  is  demanded. 

The  order  appealed  from  should  be  affirmed,  with  ten  dollars 
costs. 


NEW  YOEK— OCTOBEK,   1860.  79 


Sorley  v.  Brewer. 


JAMES  SORLEY  and  others  v.  HENRY  C.  BREWER  and  others. 


The  master  of  a  vessel  has  a  lien  upon  the  freight  and  earnings  of  the  vessel 
for  the  voyage,  for  advances  and  personal  responsibilities  necessarily  made 
or  incurred  by  him,  during  the  voyage,  for  .the  safety  of  the  vessel,  and  the 
successful  prosecution  of  the  voyage ;  and  this  lien  is  assignable. 

A  suit  against  a  vessel  in  the  United  States  Court  for  advances,  is  no  defence 
to  an  action  upon  the  lien  of  the  master  of  the  vessel  on  the  freight,  unless 
the  plaintiffs  had  such  lien  at  the  time  of  the  commencement  of  the  action 
in  rem. 

Where  the  plaintiff  had  made  advances  for  the  benefit  of  a  vessel,  and  had 
taken  an  assignment  of  the  master's  lien  on  the  freight  therefor,  and  the 
owners  of  the  vessel  were  insolvent, — Held,  a  proper  case  for  an  injunction, 
and  the  appointment  of  a  receiver  to  collect  such  freight,  notwithstanding 
the  allegations  'of  the  answer  and  affidavits  showed  that  the  defendants  had 
chartered  the  vessel  from  the  owner  for  such  voyage. 


THE  object  of  this  action  was  to  recover  certain  advances 
made  by  the  plaintiffs  for  the  benefit  of  the  barque  Conroy. 
The  complaint  and  the  affidavits  set  up,  that  the  barque 
Conroy  arrived  at  the  port  of  Galveston,  Texas,  in  a  disabled 
condition,  and  that  the  plaintiffs,  to  enable  her  to  continue  her 
voyage,  made  advances  to  repair  her,  and  pay  certain  neces- 
sary charges  for  the  handling  of  freight,  &c.,  with  the  under- 
standing with  the  master,  that  they  should  be  subrogated  to 
the  lien  of  the  master.  The  master  and  plaintiffs  agreed  to 
consign  the  vessel  to  the  defendants  upon  their  accepting  a 
draft  drawn  by  the  master,  to  reimburse  them.  The  defendants 
did  not  accept  the  draft,  and  the  master  thereupon  declined  to 
consign  the  vessel.  It  was  further  alleged,  that  the  master 
being  liable,  assigned  to  the  plaintiffs  his  lien  on  the  freight 
for  such  advances,  but  that  the  defendants  had  refused  to 
allow  the  plaintiffs  to  collect  the  freight,  and  under  an 
alleged  charter  party  from  the  owner,  claimed,  and  were  en- 
deavoring to  collect  the  freight.  The  plaintiffs  claimed  that 


80  COUKT  OF  COMMON  PLEAS 

* 

Sorley  v.  Brewer. 

such  charter  party  was  void  as  against  them,  and  prayed  for  a 
judgment  for  the  freight  actually  collected  by  the  defendants, 
and  for  ah  injunction  and  receiver  to  collect  such  freight.  It 
also  appeared  by  affidavit,  that  the  owners  of  the  barque  were 
insolvent. 

A  libel  had  been  previously  filed  against  the  barque,  in  the 
United  States  District  Court. 

The  defendants,  by  their  answer,  set  up  that  the  advances  were 
made  on  the  credit  of  the  owner  of  the  vessel,  and  not  on  the 
credit  of  the  vessel  ;  that*  the  draft  was  drawn  without  autho- 
rity ;  that  the  plaintiffs  and  the  master  knew  of  this  charter 
party,  and  they  denied  the  agreement  with  the  master, 
charged  in  the  complaint.  They  averred  a  violation  of  the 
master's  agreement  under  the  charter  party,  and  denied  that 
anything  was  due  the  master  of  the  barque.  They  set  up  the 
defendants'  charter  party  with  its  attendant  circumstances,  and 
their  right  to  collect  the  freight  under  it.  They  further  set  up 
the  libel  in  the  United  States  District  Court,  against  the 
barque,  and  an  interlocutory  decree  in  the  proceedings  there- 
under, in  favor  of  the  plaintiff. 

The  following  opinion  was  given  at  Special  Term. 

HILTON,  J. — It  appears  that  the  barque  Conroy,  commanded 
by  Abner  Cornell,  master,  arrived  at  Galveston,  Texas,  on  her 
voyage  from  New  York,  in  a  disabled  condition,  needing 
repairs  and  supplies  ;  and  requiring  money  wherewith  to  pay 
charges  on  cotton  for  transportation  from  the  interior  to  the 
coast,  and  which  payment  was  necessary  to  enable  her  to  ob- 
tain such  cotton  as  freight. 

The  plain  tiffs,  were  merchants  at  Galveston,  and  on  the  appli- 
cation of  the  master,  made  the  necessary  advances  for  those 
purposes,  by  means  of  which  the  vessel  obtained  freight  upon 
her  homeward  voyage  to  New  York,  amounting  to  $2,130. 

The  amount  thus  advanced  by  the  plaintiffs  was  $3,971  43, 
about  $1,000  of  which  was  applied  in  the  payment  of  the 
charges  upon  the  cotton  which  was  obtained  by  the  barque  for 
freight: 

After  the  arrival  of  the  barque  at  this  port,  and  by  writing 
dated  April  8th,  1859,  the  captain  assigned  and  transferred  to 


NEW  TOEK— OCTOBER,   1860.  81 

Sorley  v.  Brewer. 

the  plaintiffs  all  the  freight,  money  and  earnings  of  the  vessel 
npon  the  voyage,  and  all  lien  and  interest  which  he  as  such 
master  had  hereto,  for  or  on  account  of  such  advances,  or  of  his 
liability  therefor,  as  collateral  security  for  the  repayment  to  the 
plaintiffs  of  the  sums  thus  advanced  by  them. 

The  owners  of  the  vessel  being  insolvent,  the  plaintiffs  aver 
that  they  will  lose  their  advances  unless  they  can  be  protected 
by  a  lien  on  the  freight  for  the  advances  so  made  to  the  cap- 
tain to  enable  him  to  obtain  it,  and  a§  a  Court  of  Equity,  we 
are  asked  to  enforce  this  lien  thus  acquired  through  the  captain, 
for  the  benefit  of  the  plaintiffs,  by  appointing  a  receiver  to  col- 
lect the  freight,  and  restraining  the  defendants  from  interfering 
with  it. 

In  opposition  to  this  claim,  the  defendants  insist  that  they 
are  solely  entitled  to  the  freight  carried  by  virtue  of  a  charter 
party,  dated  December  10,  1858,  entered  into  between  them 
and  the  owner  of  the  barque,  by  which  the  vessel  was  char- 
tered to  them  for  the  voyage  in  question. 

Under  this  charter  party  the  defendants  were  collecting  the 
freight,  when  this  action  was  commenced,  and  an  injunction 
against  their  further  interference  with  it  was  granted. 

The  plaintiffs  now  ask  that  this  restraint  be  continued 
during  the  pending  of  this  litigation,  and  that  a  receiver  be 
appointed  to  collect  the  freight  earned  upon  the  voyage  in 
question. 

On  the  argument  of  this  motion  many  other  facts  of  a  minor 
character  were  presented,  and  many  questions  discussed,  which 
I  do  not  intend  to  refer  to  at  this  stage  of  the  action,  desiring 
that  the  parties  at  the  trial  may  not  be  embarrassed  by  any 
view  which  might  now  be  taken  respecting  them,  and  believ- 
ing that  the  present  application  should  be  disposed  of  on  the 
fycts  here  narrated. 

Nor  is  it  material  that  tho  second  defence  set  up  in  the  de- 
fendants' answer  should  be  passed  upon  further  than  to  remark 
that  it  does  not  appear  that  at  the  time  of  filing  the  libel  in  the 
District  Court  by  the  plaintiffs,  against  the  vessel  in  rem, 
claiming  a  lien  for  the  same  moneys  which  are,  in  this  action, 
attempted  to  be  collected  as  a  lien  upon  the  freight,  that  the 
defendants  possessed,  by  assignment  from  the  captain,  his  lienr 
6 


COURT  OF  COMMON  PLEAS. 


Sorley  v.  Brewer. 


as  master  of  the  vessel,  for  indemnity  for  the  personal  respon- 
sibility incurred  by  him  as  such  master  in  a  foreign  port. 

It  therefore  cannot  be  said  that  the  plaintiffs  might  have  en- 
forced the  lien,  now  claimed  in  that  proceeding,  because  it  is 
not  shown  that  they  possessed  any  claim  to  it  when  that  pro- 
ceeding was  instituted. 

That  the  master  had  a  lien  upon  the  freight  and  earnings  of 
the  vessel  for  the  voyage,  in  respect  to  his  advances  and  personal 
responsibilities  necessarily  made  or  incurred  by  him  while  at 
Galveston,  for  the  safety  of  the  vessel  and  the  successful  pro- 
secution of  her  homeward  voyage,  I  think  cannot  be  doubted. 
Van  BoTcMin  v.  Ingersoll,  7  Cow.  670  ;  S.  C.  5  Wend.  315  ; 
Lewis  v.  Hascock,  11  Mass.  72  ;  Ship  Packet,  3  Mason,  255  ; 
3  Kent,  167,  note  2  ;  Parson's  Mercantile  Law,  381.  And  this 
lien  thus  given  by  law  is  capable  of  being  assigned  by  him  so 
as,  to  vest  in  the  assignee  the  same  rights  which  he  possessed  by 
reason  of  it.  Jewett  v.  Coffin,  20  "Wend.  603  ;  Judah  v.  Kemp, 
2  John.  Cases,  418. 

The  plaintiffs,  therefore,  occupy  the  same  position  before  the 
Court  as  the  captain  or  master,  and  in  an  action  against  par- 
ties claiming  to  collect  the  freight  under  color  of  right  acquired 
through  a  charter  party,  made  with  the  owner  of  the  vessel,  an 
injunction  is  sought  pending  a  litigation  in  which  the 
rights  of  the  respective  claimants  are  to  be  determined. 

I  think  the  circumstances  shown  are  such  as  justify  me  in 
granting  the  motion. 

It   cannot  be   that  a  master's  lien  thus   acquired   can  be 
'  divested  by  the  owner  of  the  vessel,  by  any  means  short  of  ac- 
tual satisfaction  by  payment,  and  to  so  hold,  would  be  in  effect, 
declaring  a  lien   to   exist   which   at   any  moment  might  be 
evaded  at  the  will  of  the  owner. 

The  injunction  will,  therefore,  be  continued,  and  a  receiver 
appointed. 

From  this  decision  the  defendants  appealed  to  the  General 
Term  of  this  Court. 

Jeremiah  Larroque,  for  the  appellants. 
Martin  &  Smiths,  for  the  respondents. 


YOR£— AUGUST,   1860.  83 


Butt  v.  Peck. 


BY  THE  COUBT. — BEADY,  J. — It  is  unnecessary  to  state  any- 
thing in  addition  to  the  reasons  assigned  by  Judge  HILTON,  at 
special  term.  The  lien  of  the  master  being  unquestionable  on 
authority,  the  injunction  was  properly  continued.  The  defen- 
dants are  mistaken  in  supposing  that  by  granting  the  injunc- 
tion against  the  defendants,  the  plaintiffs  are  at  liberty  to  col- 
lect the  freight  money  at  leisure.  The  order  provides  for  the 
appointment  of  a  receiver  to  collect,  and  according  to  well- 
settled  rules,  the  receiver  must  hold  the  fund  collected  subject 
to  the  order  of  the  Court. 

The  order  at  special  term  should  be  affirmed,  with  $10  costs. 


EGBERT  McC.  BUTT,  Receiver,  <&c.,  v.  EDWIN  PECK,  Assignee, 
&c.)  and  WILLIAM  EL  BLASHFOBD,  and  others. 


A  direction  to  the  assignee  in  an  assignment  for  the  benefit  of  creditors,  to  pay 
first  all  the  just  and  reasonable  expenses,  costs  and  charges,  and  commis- 
sions of  executing  and  carrying  into  effect  the  assignment,  "  and  all  reason- 
able and  proper  charges  for  attorney  and  counsel  fees  respecting  the  same," — 
does  not  render  the  assignment  void.  [The  case  distinguished  from 
Dunham  v.  Waterman,  17  N.  Y.  9.] 

The  assignment  directed  the  assignee  to  pay  all  debts  due  or  to  grow  due,  re- 
ferred to  in  Schedule  A.  The  schedule  contains  the  names  of  two  creditors 
with  words,  "  amount  due  him  for  services,"  annexed,  but  omitted  to  state 
the  amounts  due  to  them, — Held,  that  the  omission  to  specify  the  amounts  of 
the  debts  in  the  schedule,  did  not  avoid  the  assignment. 

The  words  "  debts  to  grow  due,"  although  objectionable,  may  be  understood 
to  mean  claims  which  have  not  matured,  but  which  are  capable  of  being 
readily  understood. 

APPEAL  by  the  plaintiff  from  a  judgment  dismissing  the  com- 
plaint on  the  trial. 

This  action  was  Drought  by  the  plaintiff,  as  receiver  of  the 


84  COURT   OF   COMMON  PLEAS. 

Butt  v.  Peck. 

defendants,  Blashford,  Clark,  and  Hall,  appointed  in  supple- 
mentary proceedings  at  the  instance  of  certain  creditors,  to  set 
aside  an  assignment  made  by  Blasliford,  Clark,  and  Hall,  for 
the  benefit  of  their  creditors. 

The  parties  having  rested,  the  cause  was  submitted  to  the 
judge  (BRADY,  J.)  who  found  as  a  conclusion  of  law,  that  the 
assignment,  and  all  the  trusts  and  provisions  therein  contained 
were  good  and  valid.  The  reasons  for  his  decision  are  given  in 
the  following  opinion. 

BRADY,  J. — The  provision  in  the  assignment   by  the  defen- 
dants in  this  case  directing  the  assignee  first  to  pay  all  the  just 
and  reasonable  expenses,  costs,  and  charges,  and  commissions 
of  executing  and  carrying  into  effect  the  assignment,  "  and  all 
reasonable  and  proper  charges  for  attorney  and  counsel  fees 
respecting  the  same,"  does  not  render  the  assignment  void  ;  the 
expenses  of  the  trust  are  usually  provided  for  by  the   assign- 
ment, and  when  they  are  not,  the  assignee  is   authorized  to 
retain  out  of  the  moneys  that  come  into  his  hands  enough  to 
pay  them.     Noyes  v.  Blakeman,  3  Sand.  S.  C.  531 ;   Clarlc  v. 
Hoyt,  8  Iredell  Equity,  222  ;  Egbert  v.  Brooks,  3  Harrington 
(Del),   110 ;  Hill  on  Trustees,  570 ;  Lewin   on  Trusts,  450  ; 
Webb  v.  Shaftesbury,   1  Vesey,   480 ;  Brocksopp  v.  Barnes, 
5  Mad.  Ch.  Rep.,  90.   And  the  fees  of  the  counsel  'for  services 
in  suits,  or  for  advice  in  the  general  management  of  the  trust 
are  properly  embraced  in  the  item  of  expenses.      Fearns  v. 
Young,  10  East,  184  ;  Jones  v.  Stockett,  2  Bland.,  417 ;  N'oyes  v. 
Blakeman,  supra.      An  assignee  may  in   most   cases  screen 
himself  against  mistake,  or  where  he  is  in  doubt  as  to  the  line 
of  his  duty,  by  taking  the  advice  of  counsel,  and  for  reason- 
able fees  for  such  advice  he  will  be  allowed  in  his  account. 
Jones  v.  Stockett,  2  Bland.,  409.     The  protection  of  the  assigned 
estate  may  often  render  it  necessary  to  consult  and  to  employ 
counsel,  arid  the  sums  paid  in  such  cases  should  be  allowed  to 
a  reasonable  extent,  in  all  cases  where  it  appears  that  any 
necessity  induced  such  consultation  or  employment,  or  that  cir- 
cumstances existed  which  justified  the  expenditure.    The  com- 
pensation of  assignees  is  limited,  and  the  courts  have  not  yet 
declared  that   they   should  appropriate  it  to  the  payment  of 
expenses  necessarily  incurred  in  the  discharge  of  their  duty. 


NEW   YORK— AUGUST,   1860.  85 

Butt  v.  Peck. 

An  assignee  cannot,  it  is  true,  charge  counsel  fees  for  services 
rendered  in  that  capacity  by  himself,  and  it  is  also  true,  that  a 
provision  thereto  would  render  the  assignment  void.  Nichols 
v.  McEwen,  21  Barbour  S.  C.  Rep.  65.  It  was  said  on  the, 
trial  of  this  case  that  Nichols  v.  McEwen  applied  to  all  cases 
where  the  assignment  provided  for  counsel  fees,  but  such  is  not 
the  fact ;  the  decision  rests  upon  the  facts  that  the  assignee  was 
a  counsellor-at-law,  and  that  the  allowance  of  counsel  fees  was 
made  to  him  by  the  language  of  the  assignment.  (See  opinion 
of  Justice  Denio,  in  Court  of  Appeals  on  the  affirmance  of  the 
judgment  of  the  Supreme  Court.)  The  provision,  therefore,  in 
the  assignment  of  the  defendants  is  in  fact  a  direction  to  the 
assignee  to  employ  a  right,  recognized  and  enforced  in  courts 
of  justice,  viz. :  To  deduct  reasonable  and  proper  charges  paid 
for  attorney  and  counsel  fees,  respecting  his  trust.  (See  Statute 
of  1858,  chap.  314,  extending  powers  of  assignees.) 

It  is  also  said,  that  the  assignment  is  void,  because  it  provides 
for  the  payment  of  a  debt,  the  amount  of  which  is  left  blank  in 
the  schedule.  The  debt  is  thus  stated  :  "  William  Fullerton, 
amount  due  for  services  and  counsel, fees."  I  cannot  discover 
on  what  principle  such  an  omission  as  here  complained  of 
should  vitiate  an  assignment.  The  exact  sum  is  not  stated, 
it  is  true,  but  the  direction  is  to  pay  the  sum  due,  whatever  it 
may  be,  and  it  is  capable  of  being  ascertained  without  diffi- 
culty. In  Hawley  v.  Wall,  1  B.  &  A.,  103,  it  appeared  that 
the  plaintiff  signed  a  composition  deed,  but  did  not  put  the 
amount  of  his  debt  opposite  his  name  at  the  time  of  his  execu- 
tion of  the  deed.  He  desired  the  person  who  presented  it  to 
come  the  next  day ;  on  the  next  day  he  refused  to  state  the 
amount,  and  to  be  bound  by  the  agreement.  Lord  Ellenborough 
held,  that  the  deed  being  executed  in  blank,  it  was  executed 
for  the  amount  of  plamtiff  's  debt,  whatever  it  might  be.  This 
principle  applied  to  the  case  in  hand,  makes  the  provision 
good. 

The  preference  was  for  the  amount  due,  and  though  that 
amount  might  be  the  subject  of  difference  on  the  settlement  of 
the  accounts  of  the  assignee,  it  cannot  reasonably  be  regarded 
as  furnishing  a  fatal  objection  to  the  validity  of  the  assignment. 
I  think  the  proposition  for  these  reasons  untenable.  It  was  also 
said  that  the  reservation  by  the  assignors  of  any  surplus  ren- 


86  COURT  OF  COMMON  PLEAS. 

Butt  v.  Peck. 

dered  the  assignment  void.  The  provision  in  this  respect  secures 
the  surplus  after  the  payment  of  all  the  debts  of  the  assignors 
in  full,  and  if  no  such  reservation  were  made,  it  would  follow 
.  as  matter  of  law.  After  the  payment  of  all  the  debts  of  the 
assignors,  the  surplus  belonged  to  them,  and  should  be  handed 
over  as  matter  of  course ;  but  if  the  assignment  only  relates  in 
this  respect  to  the  copartnership  debts  of  the  assignors,  it  is 
not  necessarily  fraudulent  as  to  individual  creditors  of  the  dif- 
ferent members  of  the  firm.  Bogart  v.  Haylet,  9  Paige,  296. 
The  appropriation  of  the  whole  of  the  copartnership  property 
to  the  payment  of  the  joint  debts  seems  to  be  a  proper  and 
equitable  disposition  of  it.  The  defendants  are  entitled  to  judg- 
ment. 
The  defendants  then  appealed  to  the  general  term. 

C.  Bairibridge  Smith,  for  appellant. 

Shea  (&  ^Richardson,  and  Joshua  Jtf.  Van  Cott,  for  respon- 
dents. 

BY  THE  COURT. — BEADY,  J. — I  adhere  to  the  opinion 
expressed  at  special  term  in  relation  to  that  clause  of  the 
assignment  which  provides  for  the  payment  by  the  assignee  of 
the  just  and  reasonable  expenses,  costs,  and  charges,  and  com- 
missions of  executing  and  carrying  into  effect  the  assignment, 
and  all  reasonable  and  proper  charges  for  attorney  and  counsel 
fees  respecting  the  same.  I  deem  it  proper  to  say,  in  addition, 
that  the  case  of  Dunham  v.  Waterman,  17  N.  Y.  Rep.  9,  was  not 
published  when  that  opinion  was  written,  and  that  I  consider 
this  distinguishable  from  that  case.  The  assignees  of  Waterman 
were  authorized  to  pay  any  such  sum  or  sums  of  money,  as 
they  might  find  proper  and  expedient,  in  and  about  the  man- 
agement of  the  assigned  estate,  or  payment  of  the  hands  em- 
ployed, or  to  be  employed  in  or  about  the  same,  or  in  the  bus- 
iness of  completing  the  manufacture  of  any  of  the  said  prop- 
erty, or  fitting  the  same  for  sale,  or  of  working  up  materials, 
&c.,  so  as  to  realize  the  greatest  possible  amount  of  money 
therefrom,  as  in  the  judgment  of  the  said  assignees  shonld 
seem  most  advisable,  and  it  was  said  of  that  provision,  that  it 
vested  in  the  assignees  a  discretionary  power,  the  exercise  of 


NEW  'YORK— AUGUST,   1860.  87 


Butt  v.  Peck. 


•which  could  not  be  interfered  with  except  for  fraud  or  want  of 
good  faith  on  the  part  of  the  assignees.  No  discretionary 
power  is  given  to  the  assignee  in  this  case.  He  is  directed  to 
pay  charges  and  expenses  which  have  been  recognized  and 
allowed  in  similar  trusts,  it  being  a  condition  precedent  to  such 
payment  however,  that  the  expenses  shall  be  reasonable  and 
proper,  and  as  they  are  to  be  reasonable  and  proper>they  are  sub- 
jected to  the  scrutiny  of  the  courts  of  justice,  and  not  alone  to  the 
judgment  and  discretion  of  the  assignee.  In  Dunham  v.  Water- 
man the  assignees  were  granted  authority  to  deal,  to  some  extent 
at  least,  with  the  assigned  estate  as  if  it  were  their  own,  and  the 
discretion  as  to  the  manufacturing  was  one  absolutely  con- 
ferred, and  over  which,  in  the  absence  of  fraud  or  want  of 
good  faith,  the  Court  could  exercise  no  power.  The  discretion 
was  unusual,  and  in  contravention  of  well  settled  principles. 
Not  so  however  the  discretion  to  pay  expenses  and  counsel  fees 
which  were  always  incidental  to,  and  formed  a  part  of,  the  trust. 
When  the  assignor  directed  and  authorized  the  assignee  to 
manufacture,  he  authorized  an  act  which  would  lead  to  delay, 
and  which  had  never  been  tolerated  by  the  courts,  although 
upon  a  proper  application,  the  assignment  being  silent  on  the 
subject,  the  courts  might  permit  the  assignee  to  convert  mate- 
rial of  the  estate,  as  suggested  in  Dunham,  v.  Waterman. 

In  this  case  no  rule  of  law  was  contravened.  No  application 
for  leave  to  pay  expenses  would  be  necessary.  The  amounts 
disbursed  by  the  assignee  in  that  respect  would  be  matters  of 
accounting,  and  therefore,  when  the  assignors  directed  the 
assignee  to  pay  such  expenses  and  charges,  they  merely 
declared  a  right  incidental  to  assignments  settled  and  estab- 
lished by  precedent,  practice  and  authority.  This  position  does 
not,  therefore,  "  overlook  the  distinction  between  a  duty 
imposed  by  law,  and  a  power  conferred  by  an  individual." 

I  do  not  agree  either  to  the  proposition  that  the  clause  in  the 
assignment  which  relates  to  schedule  "  A.,"  makes  the  assign- 
ment void.  I  think  the  objectionable  language,  "  debts  to  grow 
due"  used  therein,  must  be  understood  to  mean  claims  that  have 
matured,  and  resting  either  on  notes,  bonds,  or  other  obliga- 
tions, or  upon  credits  which  had  not  expired,  and  which  were 
easily  and  readily  capable  of  being  ascertained.  In  other  words 
it  is  a  direction  to  pay  Child  and  Fullerton  their  claims  against 


88  COUKT  OF  COMMON  PLEAS. 

Butt  v.  Peck. 

assignors,  existing  at  the  time  of  the  assignment,  and  not  to 
pay  them  for  services  to  be  subsequently  rendered,  either  to 
the  assignee,  or  to  the  assignors.  The  assignee  had  already 
been  authorized  to  pay  all  reasonable  and  proper  charges,  for 
attorney  and  counsel  fees  respecting  the  assignment.  He  was 
not  directed  to  employ  either  Child  or  Fullerton,  and  the  coun- 
sel not  being  named  by  the  assignors,  could  be  selected  by  the 
assignee  at  pleasure.  That  this  view  is  correct  appears  to  me 
conclusively  from  the  schedule  "A,"  in  which,  although  the 
amounts  are  left  blank,  the  direction  is  to  pay,  "  Asa  Child, 
amount  due  him  for  services,  counsel  fee  and  costs,"  and  "  Wil- 
liam Fullerton,  amount  due  him  for  services  performed"  I  see 
nothing  in  this  feature  of  the  assignment  which  would  prevent 
the  courts  from  interfering  with  the  assignee.  It  is  very  clear 
that  the  amounts  left  in  blank  could  be  easily  ascertained,  and 
that  if  the  creditors,  Messrs.  Child  and  Fullerton,  refused  or 
neglected  to  furnish  them,  the  assignee  could  not  for  that  rea- 
son be  arrested  in  the  performance  of  his  trust.  Those  cred- 
itors would  have  to  take  the  responsibility  of  refusing,  or  neg- 
lecting to  present  their  claims  upon  a  proper  application  by  the 
assignee.  I  think  for  these  reasons,  that  the  judgment  should 
be  affirmed.  I  agree  with  Judge  HILTON  in  the  general 
views  expressed  by  him  as  to  the  result  of  the  cases  arid  the 
policy  of  the  law,  but  I  think  the  assignors  in  this  case  have 
not  encountered  any  of  the  principles  which  have  been  fatally 
applied  to  assignments. 

DALY,  F.  J. — I  agree  with  Judge  BRADY,  that  there  is  noth- 
ing in  this  assignment  that  would  warrant  us  in  declaring  it 
fraudulent  and  void.  There  is  nothing  in  the  provisions 
relied  upon  as  having  that  effect,  that  would  bring  them  within 
the  reasons  laid  down  by  the  Court  of  Appeals  for  their  judg- 
ment in  Nicholson  v.  Leavitt,  and  Dunham  v.  Waterman. 

HILTON,  J.,  dissented. 

• 
Judgment  affirmed. 


NEW  YOBK— FEBRUARY,   1860.  .89 

Honegsberger  v.  Second  Avenue  R.  R.  Company. 


DANIEL  HONEGSBERGER  v.  THE  SECOND  AVENUE  R.  R.  COMPANY. 

In  determining  what  would  or  would  not  be  negligence  on  the  part  of  a  child 
six  years  of  age,  it  is  not  to  be  understood  that  a  child  of  that  age  is  to  be 
held  to  the  same  degree  of  caution,  foresight  and  discretion  that  would  be 
exacted  from  an  adult. 

If  a  child  exercises  the  caution  of  one  of  its  years,  that  is  all  that  can  be  re- 
quired of  it.  More  would  be  impossible,  and  the  law  does  not  exact  an 
impossibility. 

A  request  to  charge  that  it  is  negligence  on  the  part  of  a  parent  to  allow  a 
child  six  years  old  to  go  alone  in  the  streets, — Held,  properly  refused.  * 

APPEAL  from  an  order  of  the  special  terra  denying  the  de- 
fendant's motion  for  a  new  trial,  and  from  the  judgment  en- 
tered in  the  action  in  favor  of  the  plaintiff. 

The  action  was  brought  to  recover  damages  against  the 
defendants  for  the  negligence  and  carelessness  of  the  driver  of 
one  of  their  cars,  by  which  the  infant  son  of  the  plaintiff,  aged 
about  six  and  a  half  years,  while  returning  from  school,  was 
run  over  by  defendant's  car,  and  his  arm  so  crushed  that  ampu- 
tation became  necessary. 

Judge  DALY  charged  the  jury  as  follows : 

"  This  action  is  brought  by  the  father  of  the  injured  boy,  to 
recover  pecuniary  satisfaction  for  the  loss  which  he,  the  plain- 
tiff, has  sustained,  by  reason  of  the  accident.  It  is  not  for  the 
pain  and  suffering  of  the  child,  nor  for  his  prospective  services. 

"  It  is  necessary  for  the  plaintiff  to  prove  that  the  injury 
was  produced  by  the  negligence  of  the  defendants — by  their 
exclusive  negligence — and  that  the  boy's  negligence  did  not 
contribute  to  it.  But  in  determining  what  would  or  would 
not  be  negligence  on  the  part  of  the  boy,  it  is  not  to  be  under- 
stod  that  a  child  of  the  age  of  the  boy  is  to  be  held  to  the 
same  degree  of  caution,  foresight  and  discretion  that  would  be 
exacted  from  an  adult.  If  the  child  has  arrived  at  an  age  in 
which  his  parents,  in  the  exercise  of  a  sound  discretion,  aro 


90  COUKT    OF  COMMON    PLEAS. 

Honegsberger  v.  Second  Avenue  R.  R  Company. 

justified  in  permitting  him  to  go  to  school  alone  and  unat- 
tended ;  if  they  are  chargeable  with  no  negligence  in  suffering 
him  to  do  so,  the  child,  while  in  the  public  streets,  is  to  be  held 
only  to  the  exercise  of  that  caution  and  discretion  of  which 
children  of  his  age  are  presumed  to  be  capable.  If  he  does 
that,  it  is  all  that  the  law  can  require.  There  may  be  cases 
in  which  an  adult,  in  going  through,  or  in  crossing  the  public 
street,  would  be  expected  to  exercise  a  degree  of  discretion 
and  judgment,  in  respect  to  the  safety  of  his  person,  or  to 
avoid  accidents,  which  could  not,  to  the  same  extent,  be 
expected  from  a  child,  though  he  had  arrived  sufficiently  at 
years  of  discretion  to  justify  his  parents  in  allowing  him  to  go 
into  the  public  streets  alone,  especially  in  going  to  and  from 
echool.  Where  parents  cannot  be  held  chargeable  with  negli- 
gence, in  permitting  a  child  to  go  unattended  into  the  public 
streets,  the  law  will  hold  the  child  bound  to  the  exercise  of 
care  and  caution,  to  the  extent  of  its  capacity — that  is,  to  the 
same  care,  caution,  and  judgment  that  would  be  expected  in 
those  of  the  same  age ;  and  if,  in  the  view  of  the  law,  you  are 
of  opinion  that  the  boy  was  guilty  of  negligence,  and  that  that 
negligence  contributed  to  the  accident,  the  plaintiff  cannot 
recover. 

"  The  recovery  of  the  plaintiff,  if  any,  must  be  limited  to  his 
actual  expenditures,  nurse's  bill,  doctors'  bills,  &c." 

The  defendant's  counsel  thereupon  duly  excepted,  and  re- 
quested His  Honor  to  charge  that  it  was  negligence  on  the  part 
of  the  plaintiff  to  allow  his  son,  a  lad  of  six  years  of  age,  to  be 
in  the  crowded  streets  of  the  city  without  a  protector  ;  but  the 
judge  refused  so  to  charge,  and  the  counsel  excepted  to  such 
refusal. 

The  jury  thereupon  found  a  verdict  for  plaintiff  for  $869  50. 

The  defendants  moved  for  a  new  trial  on  a  case  made, 
which  motion  was  denied,  and  defendants  appealed. 

Waldo  Hutchins  and  John  H.  Plait,  for  appellants. 
Andrew  Boardman^  for  respondents. 

BY  THE  COUBT. — HILTON,  J. — We  think  this  case  was  pro- 
perly left  to  the  jury,  and  that  the  charge  of  the  judge  is  not 


NEW   YORK— FEBRUARY,   1860.  91 

Smith  v.  Applegate. 

"open  to  any  objection.  When  the  law  considers  a  child  to  be 
of  sufficient  maturity  to  go  alone  in  the  public  streets  (2 
Rev.  Stat.  5th  Ed.  165,  §  266),  it  certainly  cannot  require  any 
greater  caution  or  prudence  from  it  than  its  age  will  justify. 

If,  therefore,  the  child  exercises  the  caution  of  one  of  its 
years,  that  is  all  that  can  be  expected  of  it.  To  desire  more 
would  be  to  require  it  to  have  the  judgment  of  a  person  of  ma- 
ture years  ;  and  as  this  would  be  impossible,  the  proposition  is 
conclusively  answered  by  saying  that  the  law  does  not  exact 
an  impossibility. 

Order  affirmed. 


CALVIN  W.  SMITH  v.  JOSEPH  APPLEGATE. 

A  creditor  is  entitled  to  apply  money  received  by  him  to  either  or  any  of  the 
separate  debts  due  to  him  from  the  person  making  the  payment. 

The  acceptance  of  a  note  or  bill  made  by  a  third  person,  on  a  precedent  debt, 
affords  no  presumption  in  favor  of  the  debtor,  but  leaves  the  onus  of  proving 
that  it  was  taken  in  absolute  payment,  upon  him. 

,  But  the  acceptance  of  such  a  security  suspends  the  creditor's  right  to  sue  upon 
his  original  claim,  until  the  maturity  of  such  security. 

THIS  action  was  brought  in  the  District  Court,  for  the  Fourtli 
Judicial  District,  upon  a  promisory  note  for  one  hundred 
dollars.  The  defendant  answered,  alleging  that  the  note  was 
an  accommodation  note,  made  for  the  benefit  of  James  L. 
Cheeseman,  and  that  it  had  been  paid.  Upon  the  trial,  it  aj> 
peared  that  Charles  B.  Tappan,  had  procured  from  the  plaintiff, 
for  James  L.  Cheeseman,  upon  this  note  andCheeseman's  post- 
dated check,  two  hundred  and  ten  dollars  ;  that  the  c]ieck  had 
been  paid,  and  the  note  protested.  That  Tappan  had  also  bor- 
rowed from  plaintiff  for  Cheeseman,  five  hundred  dollars,  upon 


92  GOUKT  OF  COMMON  PLEAS. 

Smith  v.  Applegate. 

two  checks  of  Cheesemau's,  which  were  not  paid.  That  Tappan, 
still  acting  as  Cheeseman's  agent,  had  thereupon  given  a  note  of 
the  New  York  Ice  Company  for  five  hundred  and  twenty-eight 
dollars  and  seventy-one  cents,  and  eighty  dollars  in  cash,  and  took 
up  the  two  dishonored  checks,  and  that  the  note  of  the  Ice  Com- 
pany had  still  some  time  to  run.  The  evidence  was  conflicting 
as  to  whether  this  note  and  the  eighty  dollars  in  cash  was  in 
payment,  or  as  collateral  for  all  the  protested  paper,  including 
the  note  in  suit,  or  only  of  the  debt  secured  by  the  two  last 
mentioned  cheques. 

Judgment  was  given  for  the  defendant,  and  the  plaintiff  ap- 
pealed to  this  Court. 

William  J.  Huff^  for  the  appellant. 

I.  There  being  no  evidence  that  the  note  was  an  accommo- 
dation note,  the  law  raised  the  presumption  that  the  same  was 
a  bona  fide  note,  and  the  defendant  was  bound  to  rebut  this 
presumption. 

II.  There  being  no  evidence  of  a  payment  having  been  made 
by  the  defendants,  either  in  part  or  in  whole,  of  the  note,  and 
the  plaintiff  being  the  owner  of  the  note,  the  plaintiff  was  en- 
titled to  recover  the  face  of  the  note  and  interest. 

The  eighty  dollars  was  paid  by  Tappan,  as  agent  of  James 
L.  Cheeseman,  on  a  loan  of  five  hundred  dollars,  and  plaintiff, 
in  absence  of  any  direction,  had  a  right  so  to  apply  the  same, 
and  there  was  no  evidence  that  the  eighty  dollars  was  the  defen- 
dant's money.  Walther  v.  Whitmore,  1  E.  D.  Smith,  19. 

III.  If  plain  tiff  held  the  same  as  collateral,  and  his  advances 
had  not  been  paid,  he  was  entitled  to  recover  the  face  of  the 
notes,  he  being  for  the  purposes  of  the  action,  the  owner  and 
holder  of  the  notes.     Nantucket  Pacific  Bank  v.  Stebbins, 
6  Duer,  348. 

BY  THE  COUET. — BRADY,  J. — The  plaintiff  loaned  to  J.  L. 
Cheeseman,  the  payee  of  the  note  in  suit,  or  his  agent,  five 
hundred  dollars,  and  such  loan  was  made  upon  two  post-dated 
checks,  \ghich  on  presentment  were  dishonored.  He  also,  prior 
to  that  transaction,  purchased  or  discounted  the  note  mentioned 
and  a  check  for  one  hundred  and  seventeen  dollars  and  fifty  cents, 


NEW  YOKK— MAY,   1860.  93 

Smith  v.  Applegate. 

and  the  note  was  also  protested.  When  the  note  and  checks 
were  under  protest  in  the  hands  of  the  plaintiff,  Tappan,  who 
obtained  the  money  from  him,  paid  to  the  plaintiff  eighty  dol- 
lars in  cash,  and  delivered  to  him  a  note  of  the  New  York  Ice 
Company,  in  payment,  or  as  collateral,  amounting  to  five  hun- 
dred and  twenty-eight,  dollars  and  seventy-one  cents,  and 
which  note,  at  the  time  of  the  trial,  was  not  yet  due.  The  plain- 
tiff did  not  return  that  note,  nor  did  he  offer  to  return  it  at  the 
trial,  although  it  was  proved,  and  was  not  disputed,  that  the 
eighty  dollars  paid,  and  the  note  given  to  the  plaintiff,  were  paid 
and  delivered  on  account  of  the  protested  paper  held  by  him. 
There  can  be  no  doubt  of  the  plaintiff's  right  to  apply  the  eighty 
dollars  toward  the  payment  of  the  last  loan,  and  of  his  right  to 
recover  on  the  note  sued  upon,  assuming  such  application  to  have 
been  made  by  him,  unless  the  acceptance  of  the  note  for  five  hun- 
dred and  twenty-eight  dollars  and  seventy-one  cents,  operated  as 
a  suspension  of  his  right  to  prosecute  the  orginal  indebtedness. 
Such  in  my  judgment  was  the  effect  of  the  receipt  of  that 
paper.  The  acceptance  of  a  note  or  bill  made  by  a  third  per- 
son on  a  precedent  debt,  affords  no  presumption  in  favor  of  the 
debtor,  but  leaves  upon  him  the  onus  of  establishing  that  it 
was  agreed  to  be  taken  in  absolute  payment  (Noel  v.  Murray, 
3  Kernan,  167),  but  until  such  security  is  due,  the  party  receiv- 
ing it  is  bound  to  perform  all  the  duties  of  holder  or  indorser, 
as  may  be,  and  his  right  to  sue  upon  his  original  claim  is  sus- 
pended. Chitty  on  Contracts,  §  979,  and  cases  cited  ;  Putnam 
v.  Leiois,  $  John.  Rep,  389 ;  Copper  v.  Powen^  Authon, 
N.  P.,  68. 

The  plaintiff  had  advanced  seven  hundred  and  ten  dollars,  and 
had  been  paid  .one  hundred  and  seventeen  dollars  and  fifty  cents? 
and  eighty  dollars,  making  one  hundred  and  ninety-seven  dol- 
lars una  fifty  cents,  which,  deducted  from  the  amount  loaned,  or 
from  the  seven  hundred  and  seventeen  dollars  and  fifty  cents, 
left  a  balance  which  was  covered  by  the  note  of  the  Ice  Com- 
pany. It  is  true  that  the  note  in  controversy,  was,  with  the  check 
of  one  hundred  and  seventeen  dollars  and  fifty  cents,  purchased 
by  the  plaintiff,  as  he  alleges,  and  that  this  would  make  his 
claim  seven  hundred  and  seventeen  dollars  and  fifty  cents  as 
above,  and  it  is  also  true,  that  from  his  statement  of  the  trans- 


94:  COURT  OF  COMMON  FLEAS. 

Smith  v.  Applegate. 

action,  it  would  seem  that  he  received  the  note  of  the  Ice 
Company  as  collateral  for  the  loan  of  live  hundred  dollars  only  ; 
but  Tappan,  who  negotiated,  the  loan,  and  made  the  sale,  stated 
that  the  note  of  the  Ice  Company  was  handed  over  with  the 
eighty  dollars  upon  the  protested  paper,  and  which  protested 
paper  included  the  note  in  action.  This  is  not  denied 
by  the  plaintiff,  and  having  accepted  from  Tappan  a  security 
sufficient  to  cover  the  whole  indebtedness  to  him,  arising  upon 
the  note  of  the,  defendant  and  the  loan  of  five  hundred  dollars, 
his  right  to  sue  upon  the  original  indebtedness  was  suspended 
until  that  security  matured.  I  am  conscious  that  the  testi- 
mony does  not  show  clearly  that  Tappan  was  acting  for  Cheese- 
man  in  obtaining  the  loan  of  five  hundred  dollars,  although  the 
appellant  concedes  the  fact  in  his  points,  but  it  was  made  upon 
checks  drawn  by  the  latter,  to  whose  order  the  note  of  one 
hundred  dollars  was  also  made  payable,  and  Tappan  was  the 
acting  man,  and  Cheeseman  the  debtor  in  both  transactions. 
If  the  fact  be  material,' the  judgment  of  the  justice  decides  it 
in  favor  of  the  defendant,  but  I  do  not  so  regard  it.  If  the  note 
of  the  Ice  Company  was  deposited  only  to  secure  the  payment 
of  the  balance  of  the  loan  of  five  hundred  dollars,  the  plaintiff 
should  have  so  stated,  and  his  omission  to  do  so  justifies  the 
conclusion  that  the  converse  was  the  fact.  For  these  reasons 
I  am  opposed  to  the  reversal  of  the  judgment,  and  think  it 
should  be  affirmed. 

PALY,  F.  J.,  concurred. 
HILTON,  J.,  dissented. 

Judgment  affirmed. 


NEW  YOKE— MA  5T,  1860.  95 


Sperling  v.  Levy. 


MAKE  SPEKLING  v.  MOKBIS  LEVF  and  CHARLES  TKIGLEE.* 

It  is  not  necessary  that  the  undertaking  given  upon  obtaining  a  stay  of  ex- 
ecution under  section  356  of  the  Code,  should  also  embrace  the  undertaking 
required  by  section  354  to  perfect  an  appeal  from  a  District  Court. 

In  an  action  upon  an  undertaking  given  under  section  356  of  the  Code,  to 
obtain  a  stay  ef  execution,  after  an  appeal  and  affirmance,  it  is  not  proper 
to  inquire  at  the  trial  whether  or  not  the  appeal  had  been  perfected  by  the 
filing  of  the  undertaking  prescribed  by  section  354  of  the  Code. 

It  is  sufficient  that  the  undertaking  sued  upon  is  in  pursuance  of  a  statute 
requirement,  that  it  was  in  the  form  prescribed  thereby,  and  that  it  was 
given  in  a  case  contemplated  by  the  statute. 

It  is  sufficient  to  establish  the  plaintiff's  right  to  re«over  in  such  an  action,  to 
prove  the  undertaking  entered  into  by  the  defendants,  the  rendition  of 
the  judgment  therein  referred  to,  and  the  sheriff's  return  of  the  execution 
issued  upon  the  judgment  unsatisfied. 

It  is  no  defence  that  the  execution  issued  .upon  the  judgment  in  the  justice's 
court  was  returned  before  the  expiration  of  the  sixty  days.  The  reasons 
which  may  have  induced  the  sheriff  to  make  such  a  return,  or  whether  it 
was  made  upon  the  request  of  the  plaintiff  in  the  action  or  not,  are  entirely 
immaterial,  and  not  the  subject  of  inquiry  in  such  an  action. 

The  acts  of  a  sheriff  in  the  return  of  a  process,  so  far  as  the  rights  of  parties 
are  concerned,  must  be  taken  as  true  when  they  arise  collaterally,  and 
can  only  be  impeached  by  direqt  proceedings,  to  which  the  officer  is  a  party ; 
or  rectified  upon  a  summary  application  to  the  court  to  correct  or  set  aside 
the  return. 

APPEAL  by  the  plaintiff  from  a  judgment  of  nonsuit  against 
him  in  the  District  Court  of  the  Second  Judicial  District. 

The  action  was  brought  upon  an  undertaking  in  the  form 
prescribed  by  section  356  of  the  Code  of  Procedure,  given 
upon  obtaining  a  stay  of  execution.  The  justice  before  whom 
the  case  was  tried  admitted  testimony  tending  to  show  that 
after  an  appeal  had  to  the  Court  of  Common  Pleas,  and  an 

*  Sperling  v.  Levy,  10  Abboti's  Pr.  R.  446,  is  another  proceeding  in  this  case. 


96  COUKT  OF  COMMON  PLEAS. 

Sperling  v.  Levy. 

affirmance  of  the  judgment,  the  execution  which  was  issued  in 
that  action,  and  for  the  stay  of  which  the  bond  in  suit  was 
given,  was  returned  unsatisfied  before  the  expiration  of  sixty 
days.  On  this  evidence,  he  dismissed  the  complaint,  and  judg- 
ment was  rendered  for  the  defendants.  The  plaintiff  appealed 
to  this  court  from  such  judgment. 

S.  jff.  Nolle,  for  appellant. 
Philip  Levy,  for  respondent. 

BY  THE  COURT. — DALY,  F.  J. — The  undertaking  upon  which 
the  action  was  brought,  was  in  the  form  prescribed  by  the 
356th  section  of  the  Code,  the  effect  of  which  is  to  stay  execu- 
tion. It  was  not  necessary  that  the  same  instrument  should 
also  embrace  the  undertaking  required  by  section  354  to  per- 
fect an  appeal.  That  undertaking  may  be  a  distinct  and  diffe- 
rent instrument,  with  different  sureties ;  and  from  all  that 
appears  in  the  caserthe  requisite  undertaking  under  the 
354th  section  may  have  been  given,  and  the  justice  would 
have  had  no  right  to  conclude  that  it  had  not  been  given.  It 
was  sufficient  that  the  undertaking  sued  upon  was  in  pursu- 
ance of  a  statute  requirement,  that  it  was  in  the  form  pre- 
scribed thereby,  and  that  it  was  given  in  a  case  contemplated 
by  the  statute.  Slack  v.  Heath,  4  E.  D.  Smith,  95.  All  this 
was  shewn  upon  the  trial.  The  undertaking  recite'd  that  the 
appellant  intended  to  appeal  to  this  court  from  the  judgment 
rendered  against  him  in  the  District  Court  of  the  Second  Judi- 
cial District.  It  was  shown  by  the  production  of  the  judgment 
record  that  the  appellant  did  appeai  to  this  court ;  that  the  un- 
dertaking given  by  the  defendant  was  filed  in  the  court ;  that 
the  judgment  of  the  Court  below  was  affirmed  upon  appeal ; 
that  execution4  was  issued  against  the  appellant  and  returned 
unsatisfied,  and  the  execution  of  the  undertaking  by  the  de- 
fendant was  admitted  by  the  answer.  This  was  all  that  was 
necessary  to  establish  the  defendant's  liability.  Slack  v. 
Heath,  supra.  It  was  no  defence  that  the  execution  issued 
upon  the  judgment  in  the  District  Court  was  returned  before 
the  expiration  of  the  sixty  days.  Wood  v.  Demikwn,  1  Hilton, 
410.  The  agreement  entered  into  while  the  appeal  was  pend- 
ing was  not  an  agreement  to  return  or  discharge  the  appellant 


NEW  YOEK— MAY,   1860.  97 

Sperling  v.  Levy. 

Levy,  but  for  the  payment  of  the  amount  of  the  judgment  by 
installments,  the  first  installment  of  which,  $14,  was  paid  by 
Levy  to  the  plaintiff,  arid  was  credited  upon  the  execution  issued 
after  the  affirmance  of  the  judgment.  It  did  not,  therefore,  ope- 
rate to  the  prejudice  of  the  defendant  Trigler,  but  was  for  his 
benefit.  I  can  see  no  ground  to  warrant  the  justice  in  dismiss- 
ing the  complaint  and  rendering  judgment  for  the  defendant, 
nor  has  any  been  snggested  by  the  respondent.  It  did  not  ap- 
pear at  whose  request  the  execution  was  returned  before  the 
sixty  days.  A  levy  was  made  under  it  of  property  enough  to 
satisfy  it,  but  the  property  was  claimed  by  one  Collamer, 
whose  claim  was  tried  by  the  sheriff,  and  upon  a  finding  in  his 
favor,  the  sheriff  returned  the  execution  unsatisfied.  After 
such  a  result,  the  sheriff  might  well  return  the  execution,  with- 
out waiting  until  the  expiration  of  the  sixty  days.  The  witness 
who  testified  that  he  did  not  know  at  whose  request  the  sheriff 
returned  the  execution  before  the  sixty  days,  also  testified  that 
he  knew  that  a  notice  had  been  given  by  the  plaintiff's  attor- 
ney to  the  sheriff,  between  ihejappeal  and  the  affirmance,  to  re- 
turn the  execution  before  the  sixty  days  had  expired ;  but  this 
could  not  refer  to  the  execution  upon  the  judgment  of  affirm- 
ance in  this  court,  as  it  had  not  then  been  issued.  The  justice 
would  not  have  been  warranted  in  finding  that  it  did,,  when  the 
witness  had  previously  sworn  that  he  did  not  know  at  whose 
request  the  execution  issued  upon  the  judgment  of  affirmance 
had  been  returned  before  the  expiration  of  the  sixty  days*  The 
judgment  should  be  reversed. 

HILTON,  J. — I  fully  concur  with  Judge  DALY  that  this  judg- 
ment is  erroneous,  and  should  be  reversed.  The  plaintiff  estab- 
lished Jiis  right  to  recover  upon  proving  the  undertaking 
entered  into  by  the  defendants,  the  rendition  of  the  judgment 
therein  referred  to,  and  the  sheriff's  return  of  the  execution 
issued  upon  the  judgment  unsatisfied.  The  reasons  which, 
may  have  induced  the  sheriff  to  make  such  a  return,  or 
whether  it  was  made  upon  request  of  the  plaintiff  in  the  action 
or  not,  were  entirely  immaterial,  and  not  the  subject  of  inquiry 
in  an  action  like  this. 

By  2  K.  S.  410,  sec.  77,  sheriffs  are  required  to  execute  and 
make  due  return  of  all  process  delivered  to  them,  according  to 
7 


98  COURT  OF  COMMON  PLEAS. 

Sperling  v.  Levy. 

the  command  thereof,  and  for  any  violation  of  this  provision 
they  are  liable  to  an  action  for  damages,  by  the  aggrieved 
party,  in  addition  to  such  other  punishment  as  the  law  author- 
izes ;  and  the  general  rule  is  too  well  settled  to  admit  of  any 
doubt,  that  their  acts  in  the  return  of  such  process,  as  far  as 
the  rights  of  parties  affected  thereby  or  their  privileges  are 
concerned,  must  be  taken  as  true  when  brought  into  contest 
collaterally,  and  can  only  be  impeached  by  direct  proceed- 
ings, such  as  those  which  make  the  officer  a  party,  or  rectified 
upon  a  summary  application  to  the  court  to  annul  or  set  aside 
the  return.  Harrington  v.  Taylor,  17  East,  378;-Z?<£»v.  Elkins  ; 
4  Burrows,  2129 ;  Bean  v.  Parker,  17  Mass.  591 ;  4  Id. 
478 ;  9  Id.  96  ;  10  Id.  313;  11  Id.  163;  15  Id.  82 ;  Boynton 
v.  Willard,  10  Pick.  169 ;  Andrews  v.  Linton,  1  Salk.,  265  ; 
3  Cowen,  Hill  and  Edwards'  Notes  to  Phill.  on  Ev.  370  ;  Sew-* 
well's  Law  of  Sheriffs,  387  ;  Putnam,  v.  Mann,  3  Wend.  202  ; 
Allen  v.  Martin,  10  Id.  301 ;  Baker  v.  McDuffie,  33  Wend. 
289  ;  Case  v.  Redfield,  7  Id.  398  ;  Van  Rensselaer  v.  Chadwick, 
7  Howard  P.  R  297 ;  Crocker  on  Sheriffs,  §§  44,  45  ;  and  see 
also  Boomer  v.  Laine,  10  Wend.  525,  which,  like  the  present 
case,  was  an  action  on  a  bond  executed  by  one  Way  and  by 
the  defendant  Laine,  as  his  surety,  on  the  adjournment  of  a 
cause  pending  before  a  justice  of  the  peace  in  favor  of  the 
plaintiff  against  Way,  conditioned  that  Way  should  render 
himself  in  execution,  or  in  default  thereof,  that  he  or  his  surety 
would  pay  such  judgment  as  should  be  rendered  in  the  pla:n-' 
tiff's  favor. 

Upon  the  trial  the  plaintiff  proved  the  execution  of  the 
bond,  the  rendition  of  a  judgment  in  favor  of  the  plaintiff 
Boomer,  the  issuing  of  an  execution  upon  it,  and  a  return  of 
non  est  inventus  thereon.  The  defendant  then  offered  to  prove 
that  at  the  time  of  the  issuing  of  the  execution  against  Way 
the  defendant  in  the  execution  had  sufficient  property  to 
satisfy  it,  but  the  evidence  was  objected  to,  and  rejected.  The 
case  went  to  the  Common  Pleas,  by  certiorari,  and  from  thence 
by  Writ  of  Error,  to  the  Supreme  Court,  where  it  was  held, 
that  the  evidence  was  rightly  rejected,  as  the  return  of  the 
officer  was  conclusive  upon  that  point 

So  in  the  case  now  before  us :  the  sheriff's  return  upon  the 
execution  was  conclusive,  and  the  justice  improperly  ad- 


NEW  YORK— MAY,  1860.  99 

Jtfeeks  v.  Bowerman. 

mitted  evidence  at  the  trial  having  a  tendency  to  impeach 
or  question  it.     Haughey  v.  Wilson,  1  Hilton,  259. 

BBADY,  J. — If  it  appeared  in  this  case  that  the  execution 
which  was  issued  upon  the  judgment  of  affirmance  had  been 
returned  at  the  request  of  the  plaintiff  without  any  action  on 
the  part  of  the  sheriff,  it  would  be  necessary  to  pass  upon  the 
question  whether  such  a  proceeding  is  a  sufficient  compliance 
v.'ith  the  statutory  pre-requisite  of  the  issuing  of  an  execution. 
This  case,  however,  shows  that  a  levy  was  made  on  the  pro- 
perty of  the  defendant,  a  claim  interposed,  and  a  trial  and  ver- 
dict in  favor  of  the  claimant. 

I  concur,  therefore,  with  Judge  DALY  that  the  judgment 
should  be  reversed. 

Judgment  reversed. 


ALFKED  MEEKS  v.  RICHAKD  K.  BOWERMAN. 


An  allegation  in  an  answer  to  an  action  founded  upon  a  lease,  that  the  defen- 
dant made  the  contract  of  hiring,  without  knowledge  that  the  premises  had 
been  previously  occupied  as  a  brothel,  with  the  assent  of  the  plaintiff,  who 
fraudulently  and  with  intent  to  deceive,  had  suppressed  that  fact ;  and  that 

;  having  entered  into  the  occupation  of  the  premises,  he  and  his  family  were 
so  annoyed  and  insulted  by  lewd  persons  calling  at  all  times  during  the  day 
and  evening  to  obtain  entrance  for  improper  purposes,  that  he  could  not 
quietly  and  peacefully  enjoy  the  premises,  and  was  thereby  evicted  there- 
from by  the  wrongful  acts  of  the  plaintiff, — Held,  on  a  motion  for  judgment 
ou  the  pleadings,  no  defence  to  the  action. 

1.  Upon  a  demise,  the  landlord  is  not  bound  to  disclose  to  the  lessee  the  uses 
to  which  the  demised  premises  have  been  previously  put,  and  in  the  absence 
of  any  express  covenants  in  the  lease,  there  can  be  none  implied  by  which 
the  lessor  can  be  held  as  warranting  the  premises  fit  for  the  purposes  for 
which  they  are  rented. 


100  COURT    OF  COMMON    PLEAS. 

Meeks  v.  Bowerman. 

2.  The  landlord  cannot  be  held  liable  for  the  conduct  of  strangers,  and  espe- 
cially -when  relief  might  be  had  against  them  on  application  to  the  police  ; 
nor  can  the  acts  of  strangers  claiming  under  no  title,  produce  an  eviction. 

The  covenant  of  quiet  enjoyment  expressed  or  implied  in  a  lease,  only  goes  to 
the  extent  of  engaging  that  the  landlord  has  a  good  title,  and  can  give  a 
free  and  unincumbered  lease  of  the  premises  demised.  The  acts  of  stran- 
gers, not  claiming  under  any  title,  cannot  in  any  sense  be  regarded  as  a 
breach  of  such  a  covenant  on  the  part  of  the  lessor. 

APPEAL  by  the  defendant  from  a  judgment  rendered  in  a 
District  Court,  on  a  motion  by  plaintiff  for  judgment  on  the 
pleadings. 

The  action  was  brought  to  recover  rent  of  certain  premises 
in  the  City  of  New  York.  The  matters  set  up  in  the  defence 
are  fully  stated  in  the  opinion  of  the  Court. 

William  Henry  Arnoux,  for  appellant. 
James  Geddes  Day,  for  respondent. 

BY  THE  COURT. — HILTON,  J. — Upon  a  demise,  the  landlord 
is  not  bound  to  disclose  to  the  lessee  the  uses  to  which  the  de- 
mised premises  have  been  previously  put,  and  in  the  absence 
of  any  express  covenants  in  the  lease,  there  can  be  none  im- 
plied by  which  the  lessor  can  be  held  as  warranting  the  prem- 
ises fit  for  the  purposes  for  which  they  are  rented.  Post  v. 
Vett&fy  2  E.  D.  Smith,  248  ;  Howard  v.  Doolittle,  3  Duer,  464 ; 
Mechanics'  and  Traders'  Fire  Ins.  Co.  v.  Scott,  2  Hilton,  550; 
Gardiner  v.  Keteltas,  3  Hill,  330 ;  Westlake  v.  De  Graw,  25 
"Wend.  669.  In  the  latter  case,  the  tenant  was  obliged  to  remove 
from  the  premises  by  reason  of  intolerable  stenches,  which  per- 
vaded the  basement  and  other  portions  of  the  house  to  such  an 
extent  as  rendered  its  occupation  dangerous  to  the  health  of 
himself  and  family ;  and  yet  the  Court  held  that  he  was  liable 
for  the  rent  due  upon  his  contract  of  hiring,  notwithstanding  he 
had  deserted  the  premises.  Whitehead  v.  Clifford,  5  Taun- 
ton,  503. 

In  the  present  case,  the  first  defence  set  up  in  the  answer,  is 
in  substance  that  the  defendant  entered  into  the  contract  for 
the  hiring  of  the  dwelling  house  in  the  complaint  specified, 


NEW  YORK— FEBKUAKY,   1861.  101 

Meeks  v.  Bowerman. 

without  the  knowledge  of  the  fact  that  it  had  been  previously 
occupied  as  a  brothel,  with  the  assent  of  the  plaintiff,  who  with 
intent  to  defraud  and  deceive,  suppressed  that  fact  from  the 
defendant  at  the  time  of  such  hiring.  That  he  entered  into 
the  occupation  of  the  house  with  his  wife  and  family,  and  was 
so  annoyed  and  insulted  by  lewd  persons  calling  at  all  times 
during  the  day  and  evening,  to  obtain  entrance  for  purposes  of 
prostitution,  that  he  could  not  quietly  and  peacefully  occupy 
the  premises,  and  was  therefore  evicted  therefrom  by  the 
wrongful  acts  of  the  plaintiff. 

The  second  defence  is  that  the  defendant  was  obliged 
to  remove  by  reason  of  the  plaintiff's  conduct,  and  by 
the  breach  of  his  covenant  of  quiet  possession  or  enjoyment  of 
the  premises. 

The  landlord  certainly  cannot  be  held  liable  for  the  conduct 
of  strangers,  and  especially  when  relief  might  have  been  had 
against  them  by  application  to  the  police  ;  nor  can  the  acts  of 
strangers,  claiming  under  no  title,  produce  an  evictiou  ;  which 
must  arise  from  the  wrongful  acts  of  the  lessor  in  interfering 
with  or  disturbing  the  tenant's  occupation.  Edgerton  v.  Page, 
1  Hilton,  320  ;  affirmed,  20  N.  Y.  R.  281. 

Assuming  as  we  must,  that  the  allegations  in  the  answer  in- 
terposed before  the  justice  are  true,  the  most  we  can  say  of 
this  case  is,  that  the  defendant  was  unfortunate  in  hiring  a 
house  for  the  residence  of  himself  and  family,  which  by  reason 
of  its  previous  occupation  as  a  brothel  had  acquired  an  un- 
pleasant notoriety ;  but  the  injury  and  annoyance  of  which  he 
complains,  is  not  such  as  the  law  recognizes  as  a  defence  to  an 
action  of  this  nature.  Respecting  the  averment  of  fraudulent 
concealment  of  facts,  it  may  be  said  that  there  can  be  no 
fraudulent  withholding  of  information,  where  there  exists  no 
obligation  to  disclose  it. 

The  maxim  of  caveat  emptor  applies  to  the  transfer  of  all 
kinds  of  property,  whether  it  be  denominated  as  real  or  per- 
sonal, and  the  purchaser  generally  takes  the  risk  of  its 
quality  and  condition,  unless  he  protects  himself  on  the 
subject  by  an  express  agreement.  Olives  v.  Willoughby,  7  Hill 
Rep.  83.  The  only  exceptions  are,  sales  of  provisions 
for  domestic  use  (Fan-  JBracklin  v.  Fonda,  12  John.  468), 


1Q2  COUKT  OF  COMMON  PLEAS. 

Ellis  v.  The  Mayor,  &c. 

and  a  demise  of  ready  furnished  lodgings.  Smith  v.  Man- 
ablt,  1  Carr.&  Marshm.  479.  .  ;^n 

Respecting  the  matter  stated  as  the  second  defence,  it  seems  al- 
most unnecessary  to  add  that  the  covenant  for  quiet  enjoyment 
expressed  or  implied  in  a  lease  only  goes  to  the  extent  of  en- 
gaging that  the  landlord  lias  a  good  title,  and  can  give  a  free 
and  unincumbered  lease  of  the  premises  demised.  The  acts  of 
strangers  not  claiming  under  any  title,  cannot  in  any  sense  be 
regarded  as  a  breach  of  this  covenant  on  the  part  of  the  land- 
lord. 

The  answer  disclosed  no  defence,  and  the  justice  was  right  in 
disregarding  it. 

Judgment  affirmed. 


CHRISTOPHER  C.  ELLIS  v.  THE   MAYOR,  ALDERMEN  AND   COM- 
MONALTY OF  THE  CITY  or  NEW  YORK. 


A  contract  by  the  Street  Commissioner,  without  the  authority  of  the  Common 
Council,  according  to  §  12  of  the  Charter  of  1853,  for  the  construction  of  a 
stone  wall  along  the  sides  of  a  street,  to  protect  the  embankment,  is  in  con- 
travention of  the  statute,  if  the  whole  work  involves  an  expenditure  of 
over  $250. 

The  fact  that  the  wall  thus  built  was  in  four  detached  pieces,  at  wide  inter- 
vals apart,  for  each  piece  of  which  the  expense  was  less  than  $250,  will  not 
take  the  case  out  of  the  prohibition  of  §  12,  it  appearing  that  the  wall  was 
directed  to  be  done  at  the  same  time,  and  was  a  continuous  work.  It  must 
be  regarded  as  falling  within  a  single  contract  or  direction  of  the  Street 
Commissioner,  and  is  therefore  within  the  prohibition. 

The  Street  Commissioner,  in  order  to  protect  a  street  embankment  which  was 
being  built  under  his  direction,  ordered  two  basins  to  be  built  to  carry  the 
water  from  the  surface  of  the  street  into  the  sewer, — Held,  that  he  had  no 
authority  to  make  any  contract  for  the  building  of  such  basins,  and  the  con- 
tractor therefor  could  not  recover. 

The  Street  Commissioner  has  cognizance  of  only  that  part  of  the  street  im- 
provements which  consist  in  their  opening,  regulating  and  paving,  (charier 


NEW  YORK— FEBRUARY,  1861.  103 

Ellis  v.  The  Mayor,  &c. 

of  1849,  §  12).  The  construction  of  basins  connected  with  the  sewers,  and 
forming  part  of  the  means  by  which  the  underground  drainage  of  the  city 
is  effected,  is  exclusively  within  the  duties  of  the  Croton  Aqueduct  Board. 
Charter  0/1849,  §15. 

The  Street  Commissioner,  though  in  some  respects  he  may  be  regarded  as  the 
agent  of  the  corporation,  is  not,  however,  such  an  agent  as  can  bind  his 
principal,  generally.  He  is  an  independent  public  officer,  acting  under 
special  statutory  authority,  but  controlled  by  the  corporation  ordinances ; 
and  therefore  like  one  acting  under  special  instructions,  from  which  he 
cannot  depart,  and  of  which  parties  dealing  with  him  are  presumed,  and 
bound,  to  have  knowledge.  He  cannot  bind  the  corporation  except  in 
respect  to  those  acts  which  fall  within  his  limited  duties  and  authority. 

APPEAL  by  the  defendants  from  a  judgment  entered  on  the 
report  of  referee. 

The  plaintiffs  assignor  contracted  with  the  defendants  to  set 
the  curb  and  pave  Fifty-fourth  street,  from  Third  to  Fourth 
A  venues.  The  plaintiff,  under  the  direction  of  the  Street  Com- 
missioner, while  carrying  on  the  contract,  did  certain  work 
upon  the  line  of  the  street,  not  called  for  by  the  contract,  and 
for  which  he  brought  action.  He  raised  the  grade  of  Fifty- 
fourth  street,  for  which  service  the  referee  allowed  as  a  proper 
and  reasonable  charge,  $250. 

But  to  protect  the  embankment,  the  Street  Commissioner 
directed  the  surveyor  in  charge  of  the  work  to  have  walls  and 
basins  bnilt,  wherever  necessary  to  protect  the  work;  and,  un- 
der the  direction  of  the  surveyor,  the  plaintiff  built  several 
parcels  of  wall — two  between  Third  and  Lexington  avenues,  and 
two  between  Lexington  and  Fourth  Avenues,  and  also  two 
basins  to  carry  the  water  from  the  surface  of  the  street  into  the 
eewer ;  for  which  the  referee  allowed  a  sum  less  than  $250  for 
each  parcel  of  wall  and  the  two  basins,  making  in  the  aggre- 
gate over  $500. 

It  was  conceded  that  by  law  the  Street  Commissioner  had  no 
right,  under  any  circumstances,  to  contract  for  any  work 
where  the  expenditure  exceeded  $250,  without  authority  from 
the  Common  Council,  and,  with  that  authority,  only  with  the 
lowest  bidder.  (Charter  of  1853,  §  12.) 

Henry  H.  Anderson,  for  appellants. 

The  Street  Commissioner  had  no  authority  to  contract  for 


104  COURT  OF  COMMON  PLEAS. 

Ellis  v.  The  Mayor,  &c. 

any  of  this  work,  except  under  ordinance  or  resolution  of 
the  Common  Council.  No  such  ordinance  or  resolution  was 
passed.  (Charter  of  1849,  sec.  23  ;  Ordinances  Organizing  the 
departments,  §§  162,  493.)  Tne  contractor  is  bound  to  see  that 
the  Charter  and  Ordinances  of  the  city  are  complied  with. 
These  formed  part  of  the  contract.  (§73.)  If  he  neglects  so  to 
do,  and  chooses  to  take  the  hazard,  he  is  a  mere  volunteer,  and 
suffers  only  what  he  ought  to  have  anticipated.  Brady  v.  The 
Mayor,  2  Bosw.  183,  S.  C.  20  N".  Y.  312 ;  Homersham  v.  Wol- 
verton  Water  Works  Co.,  4  Eng.  L.  &  Eq.  K.  426 ;  Williams 
v.  Chester  E.  .R.  Co.  5  Eng.  L.  &  Eq.  R.  501 ;  Farmers'  Loan 
&  Trust  Co.  v.  Canott,  5  Barb.  615.  (2.)  The  cost  of  the  em- 
bankment wall  exceeded  $250,  and  the  Street  Commissioner 
could  not  contract  therefor,  except  with  the  lowest  bidder. 
There  was  but  one  contract  or  employment  for  building  the 
embankment  wall.  Charter  of  1853,  §  12. 

Benjamin  M.  Stilwell,  (Stilwell  &  Swain)  for  respondent. 

I.  The  Street  Commissioner,  as  the  head  of  the  Street  De- 
partment, had  the  right  to  authorize  the  work,  unless  pro- 
hibited by  the  ordinance.     By  ordinance  of  May  17,  1850,  he 
was  authorized  to  cause  the  work  to  be  done  without  contract, 
when,  in  his  opinion,  a  contract  would  be  injurious  to  the  pub- 
lic interest. 

II.  By  the  terms  of  the  contract,  the  contractor  was  bound 
to  conform  to  such  further  direction  as  should  be  given  by  the 
Street  Commissioner  in  regard  to  the  work.     Under  this  clause 
the  plaintiff  was  bound  to  do   the   work   when  ordered    by 
the  Street  Commissioner,  or  the  surveyor  in  charge  of  the 
work. 

BY  THE  COURT. — HILTON,  J. — The  corporation  through  its 
Street  Commissioner,  contracted  with  one  Keyes  to  set  the 
curb  and  gutter,  and  grade  54th  street,  from  Third  to  Fourth 
Avenues.  Keyes  assigned  the  contract  to  the  plaintiff,  who 
performed  the  work  and  has  been  paid  the  price  agreed  upon ; 
but  he  claims  to  be  entitled  to  payment  ill  addition,  for  work 
done  upon  the  street,  not  mentioned  in  the  contract,  but 
directed  by  the  Street  Commissioner. 

It  appears  that  after  the  contract  was  made,  the  grade  of 


NEW  YORK— FEBRUARY,  1861.  105 

Ellis  v.  The  Mayor,  &c. 

Third  Avenue  was  changed  by  order  of  the  corporation,  and 
to  bring  the  grade  of  54th  street  up  to  that  fixed  for  Third 
Avenue,  the  Street  Commissioner  directed  the  plaintiff  to  fill 
in  with  extra  earth  beyond  that  which  the  contract  required 
him  to  furnish.  For  this  the  referee  has  allowed  $210,  and  I 
can  see  no  objection  to  his  having  done  so ;  as  it  did  not  involve 
an  expenditure  of  more  than  $250,  it  was  within  the  power  of  the 
Street  Commissioner  to  cause  to  be  done  without  subjecting  it 
to  public  competition,  as  required  by  sec.  12  of  the  charter  of 
1853.  See  Laws,  p.  41 ;  see  also  Corp.  Ordinances,  81,  §  6. 

The  evidence  clearly  shows  that  the  sum  allowed  was  a  fair 
compensation  for  the  work  thus  performed  by  the  plaintiff,  and 
to  this  extent  his  claim  is  valid.  I  cannot,  however,  arrive  at 
a  similar  conclusion  with  regard  to  the  other  items  which  form 
the  subject  of  the  plaintiff's  claim  in  this  suit. 

It  is  shown  that  while  the  filling  in  of  the  street  was  progres- 
sing, the  Street  Commissioner  told  the  plaintiff  to  put  up  a  pro- 
tection or  retaining  wall  for  the  purpose  of  supporting  the 
earth  thus  put  upon  the  street,  and  the  reason  tor  this  wall 
being  ordered  was,  that,  without  it  the  work  of  the  plaintiff 
would  be  in  danger  of  being  washed  away  with  the  first  heavy 
rain,  although  it  was  testified  to  that  the  plaintiff  could  have 
performed  his  contract  for  filling  in  the  street  if  the  wall  had 
not  been  built.  The  wall,  put  up  at  intervals  along  the 
street,  was  all  directed  to  be  done  at  one  time,  and  was  a 
continuous  work.  It  must,  therefore,  be  regarded  as  falling 
within  the  prohibition  of  sec.  15  of  the  charter  of  1853.  To 
hold,  as  the  plaintiff's  counsel  contended  on  the  argument,  that 
the  wall  thus  built  being  in  four  detached  pieces,  should  be 
considered  as  four  separate  and  distinct  employments,  each 
under  $250,  would  be  to  declare  in  effect,  that  a  positive  pro- 
hibition in  the  charter  might  be  evaded  and  nullified  by  a  plan 
so  simple  that  it  could  scarcely  be  considered  as  rising  to  the 
dignity  of  a  trick ;  as  I  can  hardly  imagine  any  work  required 
by  the  corporation  to  be  done,  that  could  not  thus  be  divided  into 
parts  sufficiently  small  as  to  make  the  expense  of  doing  each  part 
come  within  the  prohibition.  The  plaintifFa  contract,  even, 
would  have  been  unnecessary,  and  indeed  the  entire  streets  of 
the  city  might  be  paved  by  the  Street  Commissioner  without 
contract  and  without  subjecting  the  work  to  public  compe- 


106  COURT  OF  COMMON  PLEAS. 

Ellis  v.  The  Mayor,  &c. 

tition,  if  such  a  palpable  violation  of  the  law  as  is  shown  in  the 
present  case  should  be  allowed  to  prevail. 

A  remaining  item  of  $200,  shown  to  have  been  the  value  of 
two  stone  receiving  basins,  put  up  in  the  street  by  the  plaintiff, 
at  the  request  of  the  Street  Commissioner,  must  also  be  disal- 
lowed, but  for  another  and  different  reason. 

By  the  charter  of  1849,  sec.  12,  the  Street  Commissioner  is 
declared  to  have  cognizance  of  only  that  part  of  street  im- 
provements which  consist  in  their  "  opening,  regulating  and 
,  paving,"  while  by  sec.  15  of  the  same  charter,  the  Executive 
Department  known  as  the  Croton  Aqueduct  Board,  is  invested 
•with  the  "  charge  of  the  aqueduct  and  all  structures  and  works 
and  property  connected  with  the  supply  and  distribution  of 
water  to  the  city  of  New  York,  and  the  underground  drainage 
of  the  same,  and  of  the  public  sewers  of  said  city,"  <fec.  The 
constructing  of  receiving  basins,  which  are  works  connected 
with  the  sewers,  and  forming  as  they  do  part  of  the  means  by 
which  underground  drainage  of  the  city  is  effected,  is  plainly 
not  within  the  duties  of  the  Street  Commissioner.  He  had, 
therefore,  no  power  to  make  any  contract  with  the  plaintiff 
respecting  them.  See  ord.  organizing  depart.,  §§  350,  356, 
357. 

The  Street  Commissioner  who,  in  some  respects,  may  be  re- 
garded as  the  agent  of  the  corporation,  is  not,  however,  such 
an  agent  as  can  bind  his  principal  generally.  He  is  an  inde- 
pendent public  officer,  acting  under  special  statutory  authority, 
but  controlled  by  the  ordinances  of  the  corporation.  Charter 
of  1849,  §  21.  Therefore,  like  one  acting  under  special  instruc- 
tions from  which  he  cannot  depart,  and  of  which  parties  dealing 
with  him  are  presumed  and  bound  to  have  knowledge,  he 
cannot  bind  the  corporation  except  in  respect  to  those  acts 
which  fall  within  his  limited  duties  and  authority.  Smith  v. 
City  of  New  York,  4=  Sand.  £21 ;  Brady  v.  The  Mayor,  die., 
of  N.Y.,  20  N.  Y.  Repts,  312. 

The  judgment  should  be  reversed  except  as  to  $210,  the  ex- 
pense of  filling  in  the  street,  with  interest  thereon  from  May 
15,  1855.  For  that  amount  it  should  be  affirmed  without  costs 
of  the  appeal  to  either  party. 


NEW  YOKE— FEBRUARY,  1861.  107 

The  Mayor,  &c.  v.  Tucker. 


THE  MAYOR,   ALDERMEN,  AND  COMMONALTY  OF  THE  CITY  OF 
YORK,  v.  JOSEPH  TUCKER. 


The  authority  of  those  who  hold  public  offices  under  color  of  legal  title  cannot 
be  disputed  in  a  collateral  proceeding.  It  can  only  be  questioned  in  an  ac- 
tion brought  by  the  attorney  general  in  the  name  of  the  people  of  the  state. 
Code,  §  438. 

The  harbor  masters  of  the  City  of  New  York  have  full  power  to  station  and 
regulate  vessels  in  the  streams  of  the  North  and  East  Rivers,  and  also 
within  the  wharves  of  the  City  of  New  York. 

The  office  of  dock  master,  under  the  corporation  ordinance  of  1839,  Ch.  34, 
was  superseded  by  the  various  acts  of  the  legislature  creating  and  regulating 
the  office  of  harbor  masters. 

i 

The  act  of  1853, "  in  relation  to  the  police  department  of  the  City  of  New 
York  "  (Laws  of  1853,  p.  441),  has  been  entirely  abrogated  by  the  metropol- 
itan police  act  of  1857 ;  and  the  provisions  of  section  6  of  the  former  act 
declaring  the  captains  of  police  to  be  dock  masters  within  their  respective 
limits,  do  not  therefore,  confer  on  captains  of  police  any  authority  to  act  as 
such ;  nor  have  the  police  commissioners  any  power,  under  the  latter  act, 
to  confer  upon  policemen  any  authority  as  dock  masters. 


APPEAL  by  the  defendant  from  a  judgment  of  the  Third  Dis- 
trict Court. 

The  action  was  brought  to  recover  a  penalty  of  twenty-five 
dollars  against  the  defendant,  for  refusing  to  obey  the  order  of 
a  dock  master  to  haul  a  vessel  away  from  pier  20  and  21,  East 
River,  the  defendant  being  master  of  the  vessel. 

The  ordinance  sued  under  is  chap.  34,  "  Of  vessels,  wharves, 
and  ships,"  passed  May  8,  1839.  The  defendant  set  up,  in  an- 
swer, that  he  was  acting  under  the  orders  of  the  harbor  mas- 
ter of  the  Port  of  New  York,  duly  qualified,  who  had  jurisdic- 
tion of  the  subject  matter;  and  he  denied  the  jurisdiction  or 
authority  of  the  person  representing  and  calling  himself  dock 
master. 


108  COURT  OF  COMMON  PLEAS. 

The  Mayor,  Ac.  v.  Tucker. 

John  H.  White,  for  appellants. 

George  H.  Purser,  and  George  C.  Genet,  for  respondents. 

BY  THE  COURT. — HILTON,  J. — This  action  was  commenced  in 
June,  1857,  to  recover  a  penalty  of  twenty-five  dollars  imposed 
by  an  ordinance  of  the  plaintiffs'  upon  any  master  of  a  vessel 
who  should  refuse,  upon  the  direction  of  a  dock  master,  to  re- 
move out  of  any  of  the  public  slips  in  this  city.  The  defen- 
dant's vessel  was  lying  at  pier  20,  East  river,  where  she  had 
been  duly  stationed  by  the  orders  of  one  of  the  harbor  masters 
of  the  Port  of  New  York,  and  the  order  to  remove  therefrom 
appears  to  have  been  given  by  a  policeman,  named  Hally,  act- 
ing under  the  directions  of  a  captain  of  the  police  located  in 
the  seventh  ward.  The  policeman  claimed  to  be  acting  at  the 
time  as  dock  master,  and  when  he  ordered  the  defendant  to 
remove,  the  harbor  master  who  had  stationed  him  there  was 
present,  and  directed  him  not  to  remove  his  vessel  out  of  the 
slip.  He  declined  to  obey  the  policeman,  and  was  thereupon 
prosecuted  for  the  penalty  mentioned  in  the  ordinance.  The 
justice  gave  judgment  against  him,  and  I  must  confess,  that  1 
cannot  perceive  the  slightest  ground  upon  which  such  a  deter- 
mination can  be  sustained. 

By  chap.  72,  of  the  Laws  of  1850,  p.  81,  entitled  "  an  act  re- 
lating to  the  harbor  masters  of  the  Port  of  New  York,"  the 
Governor  was  requested  with  the  consent  of  the  Senate,  to  ap- 
point eleven  harbor  masters  for  this  port,  who  were  therein  de- 
clared to  have  authority  to  regulate  and  station  all  ships  and 
vessels  in  the  stream  of  the  East  and  North  rivers,  within  the 
limits  of  the  City  of  New  York,  and  the  wharves  thereof,  and 
to  remove  such  from  time  to  time  as  are  not  engaged  in  re- 
ceiving or  discharging  cargoes.  Also  to  determine  how  far 
those  in  charge  of  vessels  should  accommodate  others.  And 
any  one  so  in  charge,  who  refuses  to  obey  such  harbor  masters, 
incurs  a  penalty  of  fifty  dollars  for  each  offence. 

This  act,  thns  broad  and  general  in  its  terms,  was  subse- 
quently modified  by  ch.  192,  of  Laws  of  1851,  p.  365,  by  re- 
stricting the  powers  of  harbor  masters  to  such  wharves,  docks, 
and  slips,  as  did  not  belong  to  the  plaintiffs ;  but  the  modifi- 
cation thus  made  was  afterwards  repealed  by  sec.  16,  of  chap. 


NEW  YOKK— FEBRUARY,   1861.  109 

The  Mayor,  &c.  v.  Tucker. 

671,  of  the  Laws  of  1857,  p.  491,  passed  April  16th  of  that 
year,  so  that  at  the  time  this  suit  arose,  the  act  of  1850  ex- 
isted in  the  condition  in  which  it  was  originally  enacted. 

The  argument  presented  to  us  in  favor  of  sustaining  the 
judgment  may  be  stated  as  follows  : 

1.  On  .the  adoption  of  the  Constitution  of  1846,  there  ex- 
isted in  the  City  of  New  York    an  officer  called  a  dock  master, 
possessing  powers  in  respect  to  vessels  lying  at  the  wharves  of 
this    city    similar   to  those  conferred  by  the  act  of  1850  upon 
harbor  masters.      That  the  office  was  a  local  one,  created  by 
the   ordinances  of  the   city   many  years  previous,    and  fthe 
attempt  of  the  legislature  to  abolish  the  office  by  transferring 
the  powers  and  duties  of  it  to  an  officer  appointed  by  the  Gov- 
ernor, was  a  clear  violation  of  that  part  of  the   Constitution 
(Const.  1846,  art.  10,  §  2)  which  declares  that  all  city  officers 
whose  election  is  not  therein  provided  for,  shall  be  elected  by 
the  electors  of  such  city,   or  appointed  by   such  authorities 
thereof  as  the  legislature  shall  designate  for  that  purpose.  That 
a  dock  master  as  then  known  and  existing,  was  a  city   pfficer 
whose  election  the  Constitution  does  not  provide  for,  and  the  act 
of  1850  in  attempting  to  confer  his  appointment  under  another 
name,  upon  the  Governor,  is  plainly  unconstitutional  and  void. 

2.  That  in  1851  the  legislature  recognized,  to  a  certain  ex- 
tent, the  impropriety   of  interfering  with  the   then  existing 
office  of  dock  master,  by  limiting  the  authority  of  harbor  mas- 
ters to  those  wharves  and  slips  which  did  not  belong  to  the 
corporation  of  the  city,  and  as  to  such,  the  dock  masters  were 
restored  to,  and  left  in  absolute  control.     In  1853,  by  "  an  act 
in  relation  to  the  police  department  of  the   City   and  County 
of  New  York"  (Ses.  Laws,  p.  441,  §  6.),  the  office  of  dock  master 
was  expressly  recognized  as  then  existing  under  the  corpora- 
tion ordinances,  and  captains  of  police  were  there    declared  to 
be  dock  masters  within  their  respective  districts,  and  aided 
and  assisted  by  the  lieutenants  of  police,  and  policemen,  should 
do  and  perform  all  the  duties  theretofore  performed  by  dock 
masters.     That  this  law  was  in  accordance  with  the  constitu- 
tional provisions,  as  the  persons  to  whom  the  duties  of  dock 
masters  were  thus  assigned,  were  required  to  be  appointed  by 
certain  city  authorities  ;  and  further,  that  the  repealing  clause 
contained  in  the  act  of  1857,  by  which  the  law  of  1850  was  left 


110  COURT  OF  COMMON  PLEAS. 

The  Mayor,  &c.  v.  Tucker. 

in  its  original  condition,  did  not  have  the  effect  of  divesting 
captains  of  police,  and  policemen,  of  the  powers  thus  conferred 
upon  them. 

3.  That  conceding  the  act  of  1850  to  be  valid  and  constitu- 
tional, the  authority  thereby  conferred  upon  the  harbor  mas- 
ters does  not  extend  to  the  regulation  of  vessels  lying  within 
the  slips  and  wharves  of  the  city,  but  is  limited  to  the  stream 
of  the  river. 

The  first  answer  this  argument  suggests,  is  that  parties  can- 
not in  this  collateral  manner  dispute  the  authority  of  those  who 
hold  public  offices  under  color  of  legal  title.  Harbor  masters 
hold  their  offices,  as  we  have  seen,  under  the  appointment  of  the 
Governor,  made  by  the  authority,  and  in  pursuance  of  a  statute 
of  this  state.  It  must,  therefore,  be  conceded,  that  they  hold 
under  color  of  lawful  title,  and  which  can  only  be  questioned 
in  an  action  brought  by  the  attorney  general,  in  the  name  of 
the  people.  Code,  §  438.  Formerly,  it  was  by  writ  of  quo 
warranto,  but  the  Code  has  substituted  for  this  suit  the  ordin- 
ary proceeding  by  action.  Until  judgment  of  ouster  is  pro- 
nounced against  them  in  such  a  suit,  they  must  be  obeyed,  and 
their  acts  respected,  BO  far  as  they  exercise  the  powers  conferred 
upon  them  ;  there  being,  I  presume,  no  principle  of  law  better 
settled  than  that  the  acts  of  persons  thus  holding  public 
offices  are  valid  where  they  concern  the  public,  or  the  rights 
of  third  persons  who  have  an  interest  in  the  act  done.  3  Black. 
Com.  262  ;  4=  Id.  307  ;  16  Vin.  Abr.,  114;  People  v.  Collins,  7 
John.  549  ;  Fowler  v.  JZeebe,  9  Mass.  231 ;  People  v.  White,  24 
Wend.  525. 

Sere  the  harbor  master  was  acting  under  a  power  conferred 
by  a  statute  law  of  the  state,  while  the  policeman  assumed  to  be 
acting  under  the  authority  of  certain  ordinances  of  the  city  gov- 
ernment, and  the  defendant  under  such  circumstances  was 
right  in  supposing  it  to  be  his  duty  to  obey  the  officer  ap- 
pointed by  the  supreme  legislative  authority,  and  to  disregard 
all  municipal  ordinances  in  conflict  with  a  positive  statute,  as 
well  as  those  who  assumed  to  execute  them.  It  would  be  ex- 
traordinary indeed  were  the  rule  of  law  not  so,  and  this  case 
fully  illustrates  its  propriety.  Here,  the  master  of  a  vessel  di- 
rected by  a  city  policeman,  posessing  simply  the  powers  of  a 


.  YORK— FEBRUARY,  1861.  Ill 

The  Mayor,  &c.  v.  Tucker. 

constable,  in  addition  to  the  duty  the  law  imposes  upon  him  of 
enforcing  the  corporation  ordinances  (Metropolitan  Police  Act 
of  1857,  §20,  p.  200),  to  remove  from  the  wharf: — while  an- 
other officer  standing  by,  and  acting  under  a  law  of  the  State, 
orders  that  the  vessel  shall  remain.  For  refusing  obedience  to 
the  policeman,  the  ordinances  impose  a  penalty  of  twenty-five 
dollars,  while  for  declining  to  acknowledge  and  obey  the  State 
officer,  a  fine  of  fifty  dollars  may  be  incurred.  To  say  that  a 
citizen  thus  called  upon  is  required  to  examine  not  only 
whether  the  state  officer  has  been  properly  commissioned  by 
the  Governor,  but  also  determine  whether  the  law  under  which 
he  acts  is  in  conformity  with  a  complicated  provision  of  the 
Constitution,  and  make  up  a  correct  opinion  upon  each  of  these 
questions  before  he  concludes  to  obey  him,  is  simply  absurd. 
The  law  requires  nothing  so  preposterous,  and  the  defendant 
did  perfectly  right  in  obeying  the  harbor  master;  who  was  act- 
ting  strictly  and  clearly  within  the  act  of  1850,  which  not  only 
confers  upon  him  the  power  to  station  and  regulate  vessels  in 
the  stream  of  the  North  and  East  rivers,  but  also  within  the 
wharves  of  the  City  of  New  York.  Act  of  1850,  §  3  ;  Adams 
v.  Farmer,  1  E.  D.  Smith,  588. 

As  to  the  police  law  of  1853,  and  the  argument  based  upon  it, 
it  seems  to  me  only  necessary  to  remark  in  conclusion,  that  that 
law  has  been  entirely  abrogated  by  the  Metropolitan  Police  Act 
of  1857,  which  was  in  force  when  this  action  arose.  The 
powers  of  a  policeman  being  those  of  a  constable,  together 
with  such  other  duties  as  the  police  commissioners  may  impose 
(see  Laws  of  1857,  vol.  2,  p.  200,  §§6,  8,  20),  it  follows  that  the 
policeman  Hall  was  assuming  to  exercise  a  power  which  he 
had  not  by  law,  which  was  not  within  the  power  of  the  police 
commissioners  to  confer  upon  him ;  and  in  justice  to  them,  I 
should  add,  it  does  not  appear  from  the  return  that  they  at- 
tempted to  do  so.  Indeed  it  may,  I  suppose,  be  safely  assumed 
that  they  knew  nothing  of  the  policeman's  proceedings  in  this 
respect,  as  at  the  time  this  case  was  tried,  it  is  well  known 
there  was  a  conflict  of  authority  between  those  appointed  by 
the  police  under  the  law  passed  in  1853,  and  those  claiming 
under  the  act  of  1857, 

Judgment  reversed. 


112  COURT  OF  COMMON  PL£AS. 


Dunham  v.  Pettee. 


THOMAS  DUNHAM  and  FREDERICK  DIMOND  v.  DANIEL  PETTEE 
and  MOSES  MANN. 


A  tender  by  the  vendor,  of  an  unindorsed  custom  house  permit,  authorizing  a 
delivery  of  the  goods  by  the  warehouse  man,  it  appearing  that  the  permit 
was  sufficient  if  indorsed  by  the  vendor,  to  enable  the  vendee  to  take  pos- 
session,— Held,  a  sufficient  offer  of  delivery  of  the  goods.  The  want  of  the 
indorsement  was  immaterial,  as  the  indorsement  conld  have  been  made  im- 
mediately had  the  vendee  made  objection  on  that  ground. 
[Following  dictum  in  Dunham  v.  Peltee,  8  N.  Y.  508.J 

Where  it  appears  from  the  Course  of  dealing  of  the  warehouse  man,  or  by  the 
agreement  of  the  parties,  that  the  goods  stored  will  be  delivered  without 
requiring  immediate  payment  of  the  storage,  the  warehouse  man  relying 
upon  the  personal  credit  of  the  party,  there  is  no  lien ;  because  such  a 
course  of  dealing  is  inconsistent  with  an  implied  agreement  at  the  time  of 
the  deposit,  that  the  property  is  not  to  be  taken  away  unless  the  storage  is 
paid. 

Where  it  was  the  established  usage  of  the  storehouse  keeper  to  deliver  pro- 
perty to  houses  in  good  standing,  relying  upon  their  personal  credit  for 
the  payment  of  the  storage,  the  right  of  lien  was  waived,  and  the  Court 
would  have  no  right  to  imply,  nor  would  a  jury  be  justified  in  finding,  that 
the  contract  of  the  plaintiff  with  the  storekeeper  was  different  from  that  of 
other  houses  in  good  standing ;  but  it  must  be  presumed  that  the  plaintiffs 
contracted  upon  the  same  terms  as  others  in  like  situations  until  the  con- 
trary is  shown. 

There  being  no  lien  upon  the  property  for  storage,  and  the  vendee  on  tho 
permit  already  tendered,  having  the  right  to  the  possession  of  the  property, 
it  would  be  unreasonable  to  require  that,  at  the  time  of  the  delivery,  the 
vendor  should  pay  the  storage. 

THIS  was  an  application  for  a  new  trial  on  an  appeal  from  a 
judgment  entered  on  a  third  trial  of  this  cause.  The  case  was 
first  tried  before  Judge  WOODRUFF,  on  the  9th  and  llth  March, 
1850,  and  resulted  in  a  verdict  for  plaintiffs.  The  judgment 
on  this  verdict  was  affirmed  at  General  Term  on  appeal, 
Judge  "WOODRUFF  delivering  the  opinion  of  the  Court.  This 
judgment  was  reversed  in  the  Court  of  Appeals,  in  June,  1853. 
See  4  Selden,  508. 


NEW  YOKE— FEBRUARY,   1861.  US' 


Dunham  v.  Pettee. 


A  new  trial  was  had  before  Judge  DALY,  and  a  verdict 
again  rendered  for  plaintiffs,  the  judgment  on  which  was 
reversed  at  the  General  Term  of  this  Court,  in  December,  1855 
— qpinions  being  delivered  by  Judges  INGKAHAM  and  "WOOD- 
RUFF. See  4  E.  D.  Smith,  500. 

The  case  was  last  tried  before  Judge  HILTON,  and  a  verdict 
rendered  for  plaintiffs.  Application  was  made  for  a  new  trial, 
which  was  denied,  and  defendants  appealed  to  the  General 
Term. 

The  action  was  brought  upon  the  following  contract  made 
between  the  plaintiffs  and  the  defendants. 

Sold  to  Messrs.  Pettee  &  Mann,  for  account  of  Messrs. 
Dunham  and  Dimon,  155  tons  (or  thereabouts)  of  English  bar 
iron,  as  per  specification  of  the  same,  now  in  public  store  in 
this  city,  at  fifty  dollars  per  ton,  as  per  custom  house  weigher's 
return,  equal  to  six  months'  credit ;  but  payment  for  said  iron, 
is  to  be  made  as  follows,  to  wit :  $750  to  be  paid  now, 
and  the  balance  is  to  be  paid  within  sixty  days  from  this  date, 
and  discount  is  to  be  made  on  the  bill  at  the  rate  of  seven  per 
cent,  per  annum,  reckoning  the  time  from  the  date  of  the  aver- 
age payment  of  the  bill  until  the  end  of  the  six  months  above 
named.  The  sellers  are  to  hold  a  policy  of  insurance  on  the 
iron  until  the  whole  amount  is  paid  ;  and  the  buyers  are  to  pay 
the  insurance  and  all  storage  expenses  from  and  after  this  date. 
It  is  understood  that  the  iron  is  to  be  paid  for  on  delivery, 
(within  the  sixty  days  aforesaid)  and  should  the  full  amount 
not  be  paid  within  the  sixty  days  aforesaid,  Messrs.  Dunham 
and  Dimon  will  be  at  liberty  to  sell  the  iron  to  other  parties 
for  account  of  Messrs.  Pettee  and  Mann. 

New  York,  12th  March,  1849. 

NATHAN  CASWELL,  Broker. 

The  plaintiffs,  after  setting  forth  the  foregoing  contract  in 
their  complaint,  allege,  that  the  defendants  paid  the  sum  of 
$750  on  said  contract,  which  sum  the  plaintiffs  accepted  and 
received  in  part  performance  thereof;  that  they  wero  ready 
and  willing  to  deliver  said  goods  and  receive  the  balance  of 
the  consideration  therefor,  according  to  the  terms  of  the  said 
contract,  and  in  all  respects  to  comply  with  their  part  of  said 
contract,  and  that  they  did  offer  and  tender  to  the  said  plain- 
8 


114:  COURT  OF  COMMON  PLEAS. 

Dunham  v.  Pettee. 

tiffs  the  said  iron  mentioned  in  said  contract,  within  the  time 
aforesaid,  to  wit,  the  sixty  days  mentioned  in  said  contract ; 
that  the  defendants  were  not  ready  and  willing  -to  receive  the 
same  and  pay  the  balance  of  the  consideration  money  therefor, 
but  wholly  refused  so  to  receive  the  same,  to  the  damage  of 
said  plaintiffs,  &c. 

The  answer  admitted  the  execution  of  the  contract,  and  the 
payment  of  $750  on  account  thereof,  and  alleged  that  the  defen- 
dants were  ready  and  willing  to  receive  said  goods,  and  pay  for 
them  according  to  the  terms  of  the  contract,  and  demanded  of 
the  said  plaintiffs  that  they  should  deliver  to  them  the  said 
goods,  but  the  said  plaintiffs  were  not  ready  and  able,  and  re- 
fused to  deliver  the  same. 

It  appeared  in  evidence  that  the  iron  in  question,  consisting  of 
about  one  hundred  and  fifty  tons,  was  in  a  private  bonded  ware- 
house, in  New  York  ;  that  the  storekeeper,  in  order  to  deliver 
the  iron,  would  legally  require  a  permit  from  the  custom  house 
authorities.  There  was,  at  the  date  of  the  contract,  storage 
due  for  the  iron,  which  constituted  a  lien.  But  the  storehouse 
keeper  testified  that  it  had  been  his  custom  to  deliver  goods 
of  parties  he  knew,  without  requiring  the  storage  dues  to  be 
first  paid  ;  that  he  had  had  dealings  with  the  plaintiffs,  and  was 
in  the  habit  of  delivering  their  goods  in  store,  without  first  in- 
sisting on  the  storage  dues,  and  that  if  the  plaintiffs  had  sent  an 
order  for  the  delivery  of  the  iron  in  suit,  to  the  defendants,  he 
would  have  done  so.  He  did,  subsequently,  deliver  the  iron 
to  other  parties  on  the  order  of  the  plaintiffs. 

The  plaintiffs  made  a  formal  tender  of  the  iron  to  the  defen- 
dants' clerk,  offering  the  custom  house  permit,  and  rendered  a 
bill  for  the  iron,  wherein  charges  for  the  storage  since  the  date 
of  the  contract  were  included.  The  clerk  refused  to  accept  the 
tender  of  the  permit,  but  raised  no  objection  on  the  ground  of 
the  existence  of  any  lien  for  previous  storage.  It  did  not  ap- 
pear that  either  the  defendants  or  their  clerk  had  knowledge 
of  such  lien. 

The  Court  (HILTON,  J.),  having  refused  to  charge  as  re- 
quested by  the  -  defendants'  counsel,  charged  the  jury  as 
follows : 

"  The  action  IB  brought  to  recover  the  difference  between 


NEW  YORK— FEBRUARY,  1861.  115 


Dunham  v.  Pettee. 


the  price  agreed  to  be  paid  by  defendants  and  the  value  of  the 
iron  on  the  day  they  were  bound  to  complete  the  purchase.  The 
case  may  be  said  to  turn  mainly  on  a  question  of  law,  as  to  the 
effect  of  the  tender  of  the  iron  with  the  lien  existing  upon  it  for 
storage  ;  and  in  respect  to  wliich  the  storekeeper,  Briggs,  tes- 
tifies that  from  his  previous  dealings  with  the  plaintiffs,  if  they 
had  requested  him  to  deliver  the  iron  without  previous  pay- 
ment of  the  storage,  he  certainly  would  have  complied,  and 
that  he  was  in  the  habit  of  thus  dealing  with  them  and  others. 
#  *  *  *  *  'phe  defendants,  it  appears,  were  dealers  in  iron, 
and  would  naturally  be  aware  of  the  manner  in  which  iron  is 
kept,  and  at  the  time  this  tender  was  made,  it  should  be  pre- 
sumed that  they  had  knowledge  of  the  fact  that  a  charge  for 
etorage  would  exist  or  be  incurred  in  respect  to  this  iron,  and 
when  the  plaintiffs  made  the  tender  unaccompanied  by  any  re- 
ceipt for  storage,  if  the  defendants  wajited  to  avail  themselves 
of  this  objection  now  raised,  they  should  have  called  the  plain- 
tiff's attention  to  the  omission,  and  refused  to  accept  until  the 
storage  charges  were  paid,  and  the  receipt  produced ;  not 
having  done  so,  the.  objection  must  be  considered  waived. 

The  evidence  shows  that  at  the  time  of  this  tender  there  was 
offered  to  the  defendants,  the  custom  house  permit,  author- 
izing the  delivery  of  the  iron  to  the  plaintiffs,  but  not  endorsed 
by  them. 

The  Court  of  Appeals  say  that  the  want  of  this  endorsement 
was  not  material,  because  the  permit  was  not  objected  to  on 
that  ground,  and  adding  that  if  it  had  been,  the  endorsement 
could  have  been  immediately  made. 

For  the  same  reason  the  defendant  should  not  now  be  per- 
mitted to  object,  that  the  charges  for  storage  had  not  then 
been  paid,  because  this  objection  was  not  stated  at  the  time 
of  the  tender.  If  it  had  been,  the  plaintiffs  could  have  at  once 
paid  them,  and  thus  obviated  any  difficulty  on  that  ground. 

In  cases  where  property  is  tendered  to  a  party  who  knows, 
or  should  be  presumed  to  know,  of  the  existence  of  a  lien  or 
charge  upon  it,  of  this  nature,  which  could  be  easily  and 
'readily  removed,  and  at  the  time  of  tender,  certain  objections 
to  accepting  it  are  specified,  the  law  will  presume  that  the 
party  intended  to  waive  all  other  objections. 

The  tender  here  shown  was  at  the  right  time,  and  in  the 


116  COURT   OF  COMMON  PLEAS. 

Dunham  v.  Pettee. 

right  place,  and  if  made  in  the  proper  manner,  was  sufficient 
to  put  defendants  in  default. 

In  conclusion,  if  you  shall  find  that  at  the  time  of  this 
tender,  the  plaintiffs  were  in  a  condition  to  deliver  the  iron, 
that  they  actually  offered  to  deliver  it  in  performance  of  their 
contract,  and  that  there  was  then  no  lien  or  charge  for  storage, 
which,  if  attention  had  been  called  to  it,  by  objection,  they  could 
not  have  easily  removed,  they  are  entitled  to  your  verdict." 

The  jury  rendered  a  verdict  for  the  plaintiffs.  'The  defen- 
dants moved  for  a  new  trial  at  Special  Term,  which  was  de- 
nied ;  and  they  appealed  to  the  General  Term. 

Joseph  T.  Mills  and  William  Curtis  Noyes,  for  appellants. 
Charles  H.  Hunt  and  John  Van  £uren,  for  respondents. 

BY  THE  COURT. — DALY,  F.  J. — The  point  decided  by  the 
Court  of  Appeals  in  this  case,  4  Seld.  508,  was,  that  the  ques- 
tion should  have  been  submitted  to  the  jury  whether  the 
plaintiffs  were  ready,  and  offered  to  deliver  the  iron  to  the  de- 
fendants, and  the  Chief  Justice  who  pronounced  the  opinioa 
of  the  Court  declared  that  if  that  question  had  been  properly 
left  to  them,  the  jury  might  well  have  found  in  the  plaintiff's 
favor.  He  also  remarked  that  the  want  of  an  endorsement  of 
the  custom  house  permit  was  not  objected  to  by  the  defendants, 
that  if  it  had  been,  the  endorsement  could  have  been  immedi- 
ately made  or  obtained  ;  that  the  bargain  was,  in  fact,  broken 
by  the  defendants,  not  because  the  permit  was  unendorsed, 
bnt  because  the  defendants  wanted  the  permit  delivered  to 
them  that  they  might  thereby  get  the  notes  of  D.  M.  Wilson 
&  Co.,  to  whom  they  had  sold  the  iron,  and  obtain  by  means 
of  their  notes  the  money  wherewith  to  pay  the  plaintiffs.  He 
also  declared  that  it  was  not  necessary  to  bring  the  iron  to  the 
plaintiff's  office  and  tender  it  there,  but  that  an  offer  to  deliver 
in  good  faith  was  a  substantial  compliance  with  the  contract. 
It  is  true  that  all  this  was  obiter  on  the  part  of  the  Chief  Jus- 
tice, the  point  determined  by  the  Court  being  the  one  above, 
stated,  but  I  refer  to  it  because  it  was,  in  my  judgment,  a  cor- 
rect statement  of  the  law,  and  will  be  applied  without  farther, 
reference  to  it,  in  the  decision  of  the  present  case,  so  far  as  it  is 
necessary. 


NEW  YOKK— FEBRUARY,   1861.  117 


Dunham  v.  Pettee. 


When  the  case  came  again  before  the  Court  for  review  (4  E. 
D.  Smith,  500)  it  was  held  by  my  brethren  INGRAHAM  and 
WOODRUFF,  that  if  there  was  a  valid  lien  upon  the  goods  for 
storage,  the  offer  to  deliver  should  have  been  an  offer  disen- 
cumbered of  any  lien  ;  that  the  fact  that  the  clerk  of  the  defen- 
dants made  no  objection  on  that  account  was  immaterial,  as  he 
could  not  waive  the  defendants'  right,  and  that  to  warrant  a 
waiver  on  the  part  of  the  defendants,  it  must  appear  that  they 
knew  that  the  storage  remained  unpaid.  It  was  remarked, 
however,  by  my  brother  WOODRUFF,  that  there  could  be  "  no 
doubt  of  the  power  of  the  storekeeper  to  waive  the  lien,  *  *  * 
and  that  any  arrangement  between  him  and  the  plaintiff, 
amounting  to  an  actual  giving  of  credit  to  them  personally,  ex- 
cluding him  from  a  lien  upon  the  iron,  or  possibly  a  previous 
course  of  dealing  upon  personal  credit,  coupled  with  actual 
agreement  that  was  made  in  this  instance  respecting  the 
price,"  (the  rate  or  charge  for  storage)  "  might  have  warranted 
the  jury  in  finding  that  the  defendants  would,  by  accepting  the 
plaintiffs'  tender,  have  acquired  the  actual  and  legal  control 
of  the  iron,"  and  "  that  if  the  defendants  were  aware  that  the 
storekeeper  was,  in  a  course  of  dealing  with  the  plaintiffs, 
looking  to  their  personal  credit,  and  not  claiming  any  lien,  or 
even  if  that  were  the  customary  usage,  the  omission  of  the 
defendants  toonake  the  objection,  might  amount  to  an  acquies- 
cence in  the  sufficiency  of  the  tender  without  requiring  the 
plaintiffs  to  go  to  the -storekeeper  at  once  and  make  the  pay- 
ment of  storage." 

The  testimony  upon  the  present  trial  was  more  full  and  satis- 
factory upon  all  these  points  than  upon  the  former  trials,  and 
was,  in  my  opinion,  abundantly  sufficient  to  entitle  the  plain- 
tiffs to  recover. 

The  plaintiffs'  clerk  testified  that  there  was  no  occasion  for 
an  endorsement  of  the  permit,  but  that  he  would  have  en- 
dorsed it  it'  the  defendant  had  asked  him  to  do  so,  which  effec- 
tually disposes  of  this  objection. 

*  The  storekeeper  testified  that  the  custom  of  the  storehouse 
was  to  charge  the  storage  to  good  houses  like  that  of  the 
plaintiffs,  instead  of  demanding  payment,  except  in  the  case  of 
quibbling  customers,  who,  though  perfectly  good,  were  re- 
quired to  pay  the  storage  before  the  property  stored  was 


118  COURT    OF  COMMON    PLEAS. 

Dunham  v.  Pettee. 

delivered,  that  the  plain  tiffs'  standing  during  the  period  was 
good,  and  that  there  was  not  one  in  fifty  cases  where  they 
insisted  upon  the  payment  of  storage  before  delivering  the 
goods ;  that  when  an  order  was  presented,  they  charged  the 
former  owner  for  storage  up  to  that  date,  and  passed  the  new 
charges  to  new  account.  The  witness  could  not  recollect  any 
instance  in  which  the  plaintiffs  had  asked  him  to  deliver  upon 
credit.  He  could  not  recollect  if,  in  his  previous  dealings  with 
the  plaintiffs,  it  was  his  habit  to  deliver  goods  on  their  order 
without  the  payment  of  storage,  but  that  if  they  had  asked  him 
he  would  certainly  have  done  so,  as  he  wa?  in  the  habit  of  do- 
ing so  with  others  ;  that  if  the  order  or  permit  had  been  pre- 
sented to  him  he  would  have  certainly  delivered  the  goods. 
This  was  not  a  public,  but  a  private  bonded  warehouse,  in 
which  the  compensation  for  storage  went  to  the  witness  and  not 
to  the  government,  (Dunlop's  TJ.  S.  Laws,  p.  14'»3,)  and  the 
rate  or  price  of  storage  in  this  particular  case  was  agreed  upon 
between  the  witness  and  the  plaintiffs  before  the  iron  was 
taken  in. 

That  the  plaintiffs  were  not  of  the  class  known  as  quibbling  cus- 
tomers appears  from  the  statement  of  the  store-keeper,  that  he 
would  certainly  have  delivered  the  iron  upon  the  presentation 
of  the  permit,  without  requiring  the  immediate  payment  of 
the  storage,  and  the  conclusion  of  the  evidence  d&,  that  if  the 
defendants  had  fulfilled  their  contract  when  the  custom  house 
permit  was  obtained  and  tendered  to  them,  the  store-keeper 
would  have  delivered  the  iron  to  them,  and  charged  the  storage 
to  the  plaintiffs. 

There  was  in  point  of  fact  no  lien  at  all  in  the  case.  Where 
it  appears  from  the  course  of  dealing  of  the  warehouse-man, 
or  by  the  agreement  of  the  parties,  that  the  goods  stored  will 
be  delivered  without  requiring  the  immediate  payment  of  the 
storage,  the  warehouse-man  relying  on  the  personal  credit  of 
the  parties,  there  is  no  lien,  because  such  a  course  of  dealing  is 
inconsistent  with  an  implied  agreement  at  the  time  of  the  de- 
posit, that  the  property  is  not  to  be  taken  away  unless  the 
storage  is  paid.  Crawshay  v.  Horn/ray,  4  B.  &  Aid.,  50. 
In  the  case  cited,  a  quantity  of  iron  was  stored  by  the  im- 
porter with  the  warehouse-man,  and  afterwards  sold  to  the 


NEW  YORK— FEBRUARY,  1861.  119 


Dunham  v.  Pettee. 


plaintiffs.  A  part  of  the  iron  was  delivered  to  the  plaintiffs, 
when,  the  importer  having  failed,  the  warehouse-man  refused 
to  deliver  the  remainder,  claiming  a  lien  upon  it  for  the  stor- 
age. By  the  course  of  dealing,  the  storage  was  usually  paid 
by  the  merchant  importer  at  the  Christmas  following  the 
importation,  whether  the  lien  had  been  removed  in  the  mean 
time  or  not ;  and  upon  this  state  of  the  facts,  it  was  held  that 
the  warehouse-man  had  no  lien,  and  that  the  plaintiff  was  en- 
titled to  the  remainder  of  the  iron  without  paying  the  storage. 
That  case  differs  from  the  present  only  in  the  feature  that 
there,  by  the  usual  course  of  dealing,  there  was  a  fixed  time 
for  payment,  but  that  makes  no  difference  in  the  principle, 
which  is,  that  no  lien  exists  where  there  is  an  understanding 
which  may  be  implied  from  the  course  of  dealing,  that  the 
property  will  be  delivered  without  requiring  the  immediate 
payment  of  the  storage  The  right  of  lien  is  founded  upon  an 
implied  contract  (Cotuell  v.  Simpson,  16  Ves.  275 ;  Livingston 
v.  Blacklack,  M.  &  S.,  542),  and  where  it  appears  that  the 
parties  have  contracted  for  a  particular  time  of  payment,  or  for 
a  mode  of  payment  inconsistent  with  the  contract  which  the 
law  would  otherwise  imply,  no  lien  exists.  Chise  v.  Wit-more, 
5  M.  &  S.,  306  ;  Hutton  v.  Brugg,  2  Marsh.  345  ;  per  GIBBS,  C.  J. 

In  the  civil  law,  if  credit  is  given,  the  right  to  alien  is  gone, 
upon  the  ground  that  a  credit  is  inconsistent  with  a  lien  (Dig. 
lib.  18,  tit.  1,  c.  19) ;  and  this  was  recognized  as  a  principle  of 
the  common  law  as  early  as  the  Year  Book  (5  Edw.  iv.  2  pi. 
20  ;  17  Edw.  iv,). 

Where  it  appeared,  therefore,  that  it  was  the  established 
usas;e  of  the  store-keeper  to  deliver  property  to  houses  in  good 
standing,  relying  upon  their  personal  credit  for  the  payment 
of  the  storage,  it  was  showing  that  in  such  case  the  right  of 
lien  was  waived,  and  we  have  no  right  to  imply,  nor  would  a 
jury  be  justified  in  finding  that  the  contract  of  the  plaintiffs 
with  the  store-keeper  was  different  from  that  of  other  houses  in 
good  standing.  Such  an  arrangement  with  solvent  houses 
might  have  been  equally  advantageous,  both  to  the  store- 
keeper, and  to  them,  and  it  was  one  that  he  was  competent  to 
make,  as  he,  and  not  the  government,  was  entitled  to  the 
storage.  Such  an  arrangement  having  been  established  by  the 
course  of  dealing,  it  must  be  presumed  that  the  plaintiffs  con 


120  COtJRT  OF  COMMON  PLEAS. 

Dunham  v.  Pettee. 

tracted  upon  the  same  terms  as  others  in  like  situation,  until 
the  contrary  is  shown,  and  such  being  the  fact,  there  was  no 
lien. 

To  entitle  the  plaintiffs  to  recover,  they  were  bound  to  show 
that  they  were  able,  and  offered,  to  deliver  the  property.  The 
tender  of  the  permit  was  sufficient  if  that  was  all  that  was  ne- 
cessary to  enable  the  defendants  to  take  possession  of  the  goods, 
and  if  the  store-keeper  would  have  delivered  the  iron  to  them, 
on  the  presentation  of  the  permit  alone,  without  requiring 
them  to  pay  the  storage  which  he  swore  upon  the  trial  he 
would  have  done,  and  which  I  hold  he  was  bound  to  do,  upon 
the  ground  that  there  was  an  implied  understanding  at  the 
time  of  the  deposit,  that  goods  would  be  delivered  to  solvent 
houses  without  requiring  the  payment  of  storage  at  the  time  of 
delivery,  then  the  plaintiffs  have  shown  all  that  could  rea- 
sonably be  required  of  them,  and  to  insist  that  they  should  do 
what  the  store-keeper  in  this  case  did  not  exact,  to  put  them- 
selves in  a  position  to  deliver,  is  to  demand  on  their  part  the 
performance  of  an  act  which  the  facts  of  the  case  show  was 
unnecessary.  The  law  would  indeed  be  subject  to  the  re- 
proach of  insisting  upon  technicalities  to  the  sacrifice  of  sub- 
stantial justice  if  we  were  to  hold  that  the  plaintiffs  must  fail 
in  their  action  and  lose 'all  bought  upon  their  contract,  be- 
cause they  did  not  go  and  pay  the  storage  when  they  knew 
that  the  iron  would  be  delivered,  and  that  the  storage  would 
be  charged  to  them. 

The  question  put  to  the  witness  Dimon,  whether  he  had  au- 
thority to  endorse  the  permit,  if  the  money  had  been  paid,  was 
a  proper  one,  and  the  question  put  to  the  store-keeper, 
whether  in  his  previous  dealings  with  the  plaintiffs,  it  was  his 
habit  to  deliver  goods  on  their  order  without  the  payment  of 
storage,  was  also  proper  for  the  reasons  already  stated. 

The  four  grounds  assigned  for  the  motion  for  nonsuit, 
were  untenable.  The  two  first  are  answered  by  Chief 
Justice  RUGGLES  already  referred  to.  As  respects  the  third,  £ 
have  already  stated  that  in  my  judgment  the  offer  or  tender 
was  sufficient,  and  as  respects  the  fourth,  it  is  enough  to  say 
that  if  the  plaintiffs  were  not  in  a  condition  to  deliver  the  iron 
when  they  first  sent  their  check  to  the  defendants,  it  was  be- 
cause they  were  engaged  in  getting  it  through  the  custom- 


NEW   YORK— FEBKUAKY,   1861.  121 

Purdue,  &c.,  v.  The  Mayor,  &c. 

Louse  ;  they  had  tha  permit  when  their  check  was  returned, 
and  they  sent  it  to,  and  tendered  it  at,  the  defendants'  office  at 
twenty-five  minutes  before  three  o'clock  P.  M. 

The  defendants  had  left  no  instructions  with  the  clerk,  and 
it  was  very  evident  that  they  were  not  prepared  to 
pay,  as  their  object  was  to  get  the  permit,  that  they 
might '  raise,  by  means  of  it,  the  money  by  which  to  fulfill  the 
contract. 

In  the  view  I  have  taken  of  this  case,  it  is  wholly  immaterial 
whether  the  judge  was  right  or  not  in  telling  the  jury  that  as 
the  defendants  were  dealers  in  iron,  and  knew  that  this  was 
a  bonded  warehouse,  they  should  be  presumed  to  know  that 
there  was  a  charge  for  storage,  and  that  if  they  wished  to 
avail  themselves  of  the  objection  that  there  was  no  receipt 
showing  the  payment  of  it,  they  should  have  called  the  plain- 
tiffs attention  to  the  omission,  and  refused  to  accept  until  the 
charge  for  storage  was  paid,  and  in  other  respects,  the  charge, 
in  the  view  I  have  taken,  was  unobjectionable. 

The  judgment  should  be  affirmed.* 

HILTON,  J.,  concurred. 
BEADY,  J.,  dissented. 


THOMAS  PURDUE  v.  THE  MAYOK,  ALDERMEN  AND  COMMONALTY 
OF  THE  CITY  OF  NEW  YORK. 

The  plaintiff  paid  an  assessment  imposed  on  his  property,  which,  by  mistake 
of  the  Collector  of  assessments,  was  credited  to  other  property  not  owned 
by  him ;  Held  that  plaintiff  could  not  recover  back  the  money  as  being  paid 
by  mistake. 

*  The  judgment  in  this  case  was  affirmed  by  the  Court  of  Appeals. 


122  COURT    OF  COMMON    PLEAS. 

Purdue,  &c.,  v.  The  Mayor,  &c. 

The  plaintiff  having  paid  his  assessment,  the  same  is  satisfied,  no  matter  what 
entry  may  be  made  on  the  defendant's  books;  and  the  plaintiff  has  his 
remedy  to  enjoin  the  defendants  from  selling  the  property  for  non-payment 
of  the  assessment,  or  he  may  compel  the  defendants  to  remove  it  as  an  in- 
cumbrance  or  lien. 

APPEAL  by  the  defendants  from  a  judgment  of  the  Marine 
Court  at  General  Term,  entered  on  a  demurrer  to  the  com- 
pl  aint. 

The  action  was  brought  to  recover  a  sum  of  money  paid 
to  the  Collector  of  Assessments  under  a  mistake  of  facts  caused 
by  the  negligence  of  said  officer. 

The  plaintiff  called  at  the  office  of  the  Collector  of  Assess- 
ments to  pay  an  assessment  which  was  due  from  him  to  the 
defendant  on  a  house  and  lot  in  the  Nineteenth  Ward  known 
as  No.  60.  He  inquired  the  amount  of  the  assessment,  received 
the  necessary  information,  and  paid  the  amount.  The  Collector 
credited  the  amount, 'riot  to  plaintiff's  lot  No.  60,  b.ut  to  lot  No. 
50,  and  the  plaintiff  sued  to  recover  the  amount  paid. 

The  defendants  demurred  to  the  complaint.  Judgment  was 
given  for  the  plaintiff  on  the  demurrer.  The  defendants  then 
appealed  to  this  court. 

Henry  H.  Anderson  for  appellants. 
Lewis  Johnston  for  respondent. 

By  the  Court. — BRADY.  J. — The  judgment  in  this  case  must 
be  reversed.  The  plaintiff  has  mistaken  his  remedy.  The 
facts  stated  in  the  complaint  do  not  show  the  payment  of 
money  not  due  from  the  plaintiff  to  the  defendants,  but  on  the 
contrary,  the  payment  of  an  assessment  imposed  upon  the 
plaintiff's  property,  which,  by  mistake,  was  credited  to  other 
property  not  owned  by  him. 

The  case  is  not  one  to  recover  money  paid  by  mistake,  but 
to  recover  back  money  rightfully  paid  as  lawfully  due,  because 
the  creditor  gave  the  benefit  of  the  payment  to  another. 
Assuming  the  facts  stated  in  the  complaint  to  be  true,  there 
can  be  no  doubt  but  the  assessment  imposed  on  the  plaintiff's 
lot  is  paid,  no  matter  what  entry  be  made  on  the  books  of  the 
defendant,  and  they  could  be  enjoined  from  selling  such  lotfo? 
non-payment  of  the  assessment  or  be  compelled,  on  a  proper 


NEW  YORK— FEBRUARY,   1861.  123 

Treadwell  v.  The  Mayor,  &c. 

application,  to  remove  it  as  an  encumbrance  or  lien.  In  Allen 
v.  The  Mayor,  4  E.  D.  Smith,  404,  the  money  was  paid  by  a 
person  against  whom  the  defendants  had  no  claim,  and  upon 
whose  property  no  assessment  had  been  imposed,  although  paid 
under  the  supposition  that  his  property  had  been  in  fact  assess- 
ed. That  case  is,  therefore,  essentially  different  from  the  one 
in  hand,  which  I  think  cannot  be  sustained  on  principle  or  au- 
thority. 
The  judgment  must  be  reversed. 

Judire  HILTON  concurred. 


DAVID  TREADWELL  v.  THE  MAYOK,  ALDERMEN  AND   COMMON- 
ALTY OF  THE  CITY  OF  NEW  YORK. 

A.  and  B.,  separate  contractors,  contracted  with  the  Ward  School  officers  in 
the  city  of  New  York,  with  the  consent  and  approval  of  the  Board  of  Edu- 
cation, to  build  a  brick  school  house ;  A.  to  do  the  carpenter's  work  and  B. 
the  mason's  work.  By  the  unskillful  manner  in  which  the  mason's  work 
was  done,  the  wall  fell  in  before  the  building  was  completed,  injuring  A.S' 
work  and  subjecting  him  to  loss  and  damage.  In  an  action  brought  by  A. 
against  the  city  corporation  to  recover  for  the  negligence  of  B. 

Held,  1.  That  although  the  defendants  were  the  owners  of  the  school 
house,  they  did  not  employ,  nor  had  they  a  right,  under  the  school  laws,  to 
employ,  B.,  and  they  were  not,  therefore,  responsible  for  his  negligence. 

2.    The  principle  of  respondeat  superior  is  not  applicable  in  such  a  case. 

An  employer  is  not  liable  to  one  of  his  agents  or  servants  for  the  negligence 
of  another  of  his  agents  or  servants,  unless  he  was  at  fault  in  the  selection 
of  the  agent  or  in  some  other  respect. 

In  the  prosecution  of  a  general  enterprise,  the  employer  does  not  warrant  to 
each  person  who  engages  in  the  enterprise  the  competency  of  every  agent 
employed,  and  cannot  be  made  responsible,  unless  it  is  shown  that  he  was 
guilty  of  a  want  of  care  in  the  selection  of  the  person  through  whose  negli- 
gence the  injury  occurred ;  though  it  is  otherwise  upon  giounds  of  public 
policy  where  the  relation  of  master  and  servant  or  of  principal  and  agent 
does  not  exist 


124  COURT  OF  COMMON  PLEAS. 

Treadwell  v.  The  Mayor,  &c. 

APPEAL  by  the  plaintiff  from  a  judgment  entered  on  a  dis- 
missal of  the  complaint  at  Trial  Term. 

The  complaint  set  forth  that  David  Treadwell,  the  plaintiff, 
being  a  builder,  made  a  lawful  contract  in  writing  on  the  16th 
day  of  June,  1853,  with  the  school  officers  of  the  Twelfth 
Ward  of  the  city  of  New  York,  to  furnish  materials  for,  and  to 
construct  and  erect,  the  carpenter  work  of  a  brick  school-house 
for  the  said  city,  to  be  located  in  87th  street. 

That  C.  H.  Tucker,  a  mason,  on  the  same  day  ma'de  a  simi- 
lar contract  with  the  said  school  officers  to  furnish  and  erect 
the  mason  work  of  the  said  school- house. 

That  the  said  contracts  were  several,  and  had  no  connection 
with  each  other,  and  that  the  said  Treadwell  was  required  by 
his  contract  to  place  his  carpenter  work  in  and  upon  the  said 
mason  work. 

That  the  said  parties  in  the  performance  of  the  said  several 
contracts,  erected  the  said  building  nearly  to  completion,  and 
that  the  work  of  each  was  at  different  times,  and  at  different 
stages  of  construction,  duly  inspected  and  accepted  by  the  de- 
fendants, and  that  on  the  13th  day  of  November,  1853,  by 
some  defect  in  the  mason  work  of  the  said  buildings,  and  from 
the  imperfect  and  unsubstantial  manner  of  its  construction, 
one  wall  thereof  fell  in,  doing  great  damage  to  the  work  and 
materials  of  the  said  Treadwell,  the  plaintiff. 

That  by  the  falling  of  the  said  wall,  the  plaintiff  was  thrown 
out  of  employment,  with  four  men,  for  the  space  of  three 
months,  and  subjected  to  other  heavy  losses  and  damages. 

That  when  the  said  walls  were  repaired,  the  plaintiff  pro- 
ceeded, with  the  knowledge  and  consent,  and  at  the  request  of 
the  school-officers  aforesaid,  to  repair  and  rebuild,  and  to  fur- 
nish anew  the  material  for  the  carpenter  work  of  said  buildings, 
and  did  so  furnish  and  build  the  same  and  complete  the  said 
building,  which  was  duly  inspected  and  accepted  by  the  said 
school  officers. 

That  the  plaintiff  has  never  been  paid  for  the  damage 
caused  by  the  said  fall,  and  that  the  same  is  reasonably  worth 
the  sum  of  three  thousand  dollars. 

The  answer  of  the  defendants  denies  that  the  said  work  was 
ever  inspected  or  accepted  by  them,  or  that  the  plaintiff  pro- 


NEW   YORK -FEBRUARY,   1860.  125 

Treadwell  v.  The  Mayor,  &c. 

ceeded  with  their  knowledge  or  consent,  or  at  their  request,  to  re- 
pair and  rebuild  the  said  house,  and  that  they  have  no  knowledge 
or  information  sufficient  to  form  a  belief  as  to  the  other  allega- 
tions of  the  complaint. 

On  the  trial,  the  plaintiff  having  rested  his  case,  the  defen- 
dants moved  to  dismiss  the  complaint  on  the  following  grounds, 
among  others : 

I.  That  neither  the  school  officers  of  the  Twelfth  "Ward  nor 
the  Board  of  Education  were  the  agents  of  the  defendants,  and 
the  defendants  are  not  liable  for    their  acts,    omissions,  or 
want  of  care  and  skill,  or  of  that  of  their  employees. 

II.  That  admitting  that  they  were  such  agents,  and  had 
authority  as  such  to  employ  the  mason  Tucker,  and  the  plain- 
tiff, then  the  plaintiff  and  Tucker  were  two  servants  or  em- 
ployees in  the  employ  of  one  principal,  and  in  the  same  gene- 
ral business,  and  that  for  any  injury  which  the  plaintiff  may 
have  sustained  through  the  negligence  of  Tucker,  the  defen- 
dants are  not  liable. 

III.  That  Tucker  was  an  independent  contractor,  for  whose 
negligence  or  want  of  skill,  or  for  that  of  his  servants  or  em- 
ployees, the  defendants  are  not  liable. 

The  motion  was  granted  by  the  Judge  (BRADY,  J.)  and  judg- 
ment ordered  for  the  defendants.  The  plaintiff  then  appealed 
to  the  General  Term. 

William  W.  Badger,  for  appellant. 

I.  A  municipal  corporation  is  liable  for  damages  caused  by 
the  negligence  of  its  contractors.     2  Denio,  433 ;  3  Hill,  531 ; 
3  Duer,   406 ;   4  N.  Y.    338 ;    5  N.  Y.  369 ;   1  Sandf.    226  ; 
3  N.  Y.  463 ;  12  Wheat.  40 ;  5  Sandf.  289  ;  4  Ham.  (Ohio) 
500;  10  Ohio  R.  160  ;  15  Id.  475  ;  8  Pick.  356 ;  23  Id.  31 ; 
3  Hill,  193  ;  16  Eng.  L.  &  Eq.  445,  447,  note  1. 

II.  The  acts  and  contracts  of  the  Board  of  Education  and 
of  the  school  officers  of  the  various  wards  of  the  city  of  New 
York,  are  the  acts  and  contracts  of  the  «ity,  (1)  on  principles 
of  agency.     School  Law,  §  25  ;  Angell  &  A.  on  Corp.  46,  50  ; 
Paley  on  Agency,  2 ;  Story  on  Agency,  8,  9.     The  city  by  ap- 
proving the  appropriations  of  the  school   officers,  as  it  did, 
through  the  Finance  commissioners,  and  allowing  the  work  to 


126  COURT  OF  COMMON  PLEAS. 

Treadwell  v.  The  Mayor,  &c. 

be  done,  indorsed  their  action  as  its  own.  Btayley  v.  'The 
Mayor  &c.,  3  Hill,  531 ;  2  Denio,  433.  See  4  Dallas  S.  C.  Pa. 
206.  (2.)  On  ground  of  ownership ;  School  Law  §  25,  (amend- 
ment of  1853.)  Mayor,  &c.  v.  Bayley,  2  Denio,  443,  405 ; 
Jolley  v.  The  Board  of  Police  Commissioners,  Mss.;  Code, 
§111. 

IIL  Plaintiff  can  have  no  other  remedy  than  the  one 
sought  in  this  action.  If  the  damage  was  caused  by  Tucker, 
as  defendants  claim,  then  Tucker  is  a  mere  middleman  or 
builder,  and  responsible  only  to  the  party  for  whom  he  built. 
And  the  same  would  be  true  of  the  Board  of  Education  or  of 
the  school  officers.  Apple-ton  v.  The  Water  Commissioners, 
2  Hill,  433;  City  of  Albany  v.  Cunlif,  2  K  Y.  165.  See  2 
Denio,  118 ;  2  K  Y.  129  ;  7  Id.  459. 

IY.  But  the  damage  claimed  in  this  case  was  not  caused  by 
Tucker,  but  by  the  defendants  themselves,  as  represented  by 
the  Board  of  Education. 

The  doctrine  that  a  principal  is  not  responsible  to  one  ser- 
vant for  damage  caused  by  another  servant,  has,  therefore,  no 
application  to  this  case,  as  it  is  not  yet  decided  that  the  dam- 
age was  caused  by  Tucker. 

But  supposing  it  caused  by  Tucker,  that  doctrine  is,  then, 
only  applicable  to  cases  where  the  injured  servant  has,  by  the 
terms  of  his  contract,  by  implication  or  otherwise,  agreed  to 
take  the  risks  of  his  emplojinent,  and  then  only  when  the  in- 
jury is  one  to  the  person,  and  there  can  be  a  remedy  against 
the  immediate  wrong-doer.  Such  were  the  cases  of  Farwell 
v.  The  Boston  &  Worcester  R.  R.  Co.  4  Met.  49,  and  of  Coon 
v.  The  Syracuse  &  Utica  R.  R.  Co.  5  N.  Y.  492. 

Richard  Bit  steed,  for  respondents. 

I.  The  re-pondents  are  not  liable,  as  the  work  which  was 
being  performed  by  the  plaintiff,  and  Tucker,  the  mason,  was 
not  performed  under  contracts  made  with  the  respondents  or 
by  their  agents,  an4  no  person  can  be  rendered  liable  to 
respond  to  a  party  for  injuries  sustained  by  him  through  the 
negligence  of  a  third  person,  unless  the  relation  of  principal 
and  agent,  or  master  and  servant,  exists  between  them.  And 
Buch  relation  cannot  be  created  except  by  contract,  express 


NEW  YOKK— FEBRUARY,  1861.  127 

Treadwell  y.  The  Mayor,  &c. 

or  implied,  between  the  principal  and  agent,  or  master  and 
servant.  Stevens  v.  Armstrong,  2  Selden,  4:35  ;  Laugher  v. 
Pointer,  5  Barn.  &  Ores.  547  ;  Milligan  v.  Hedge,  12  Adol. 

6  Ellis,  737;  Sproul  v.  Hemmingway,  14  Peck.  1;    Reeves 
Dom.  Rel.  p.  310 ;  Story  on  Agency,  sec.  452-6.     (1)    The 
school  officers  of  the  Twelfth  Ward,  who  made  the  contract 
with  the  plaintiff  and  with  Tucker,  are  not  the  agents  of  the 
defendants.     The  corporation  has  no  control  over  their  action. 
Davies'  Laws,  1057;  Laws  of  1851,  p.  74.     (2)    Though  the 
title  is  in  the  corporation,  the  control  of  the  property  is  in  the 
Board  of  Education,  and  also  the  school  funds. 

II.  If  the  appellant  has  any  claim  at  all,  it  is  upon  the 
Board  of  Education,  or  the  Board  of  School  Officers  who  em- 
ployed Tucker. 

III.  Conceding  that  the  school  officers  and  the  Board  of 
Education  are  the  agents  of  the  respondent,  the  mason  and 
carpenter  (the  appellant)  were  two  servants  in  the  employ  of 
one  principal,  and  the  rule  is,  that  a  principal  cannot  be  held 
responsible  to  one  of  his  agents  or  servants  fos  injuries  sus- 
tained by  him  through  the  negligence  of  another  agent  or  ser- 
vant when  both  are  engaged  in  the  same  general  business. 
And  this  rule  applies,  though  the  employments  of  the  agents 
are  distinct,  when  both  are  necessary  in  the  prosecution  of  a 
common   enterprise.     Coon  v.  Utica  and  Syracuse  R.  R.  Co. 

7  N.  Y.  492  ;  Priestly  v.  Fowler,  3  Mees.  &  W.  1  ;  Murray  v. 
S.  Carolina  R.  R.  Co.  1  McMullen,  385 ;  Hays  v.  Western  JR. 
R.  Co.  3  Gushing,  270;  -Brown  v.   Maxwell,  6  Hill,   594; 
Kegan  v.  Western  R.  R.  Co.  8  K  Y.  175 ;  Tarrant  v.   Webb, 
37  E.  L.  &  E.  281. 

BY  THE  COUKT. — DALY,  F.  J. — If  it  be  conceded  that  the 
defendants  are  the  owners  of  the  school-house,  still,  as  they  had 
not  and  could  not  have,  (Laws  of  1851,  747,  §§  23,  24,  7,)  any 
thing  to  do  -with  the  employment  of  Tucker,  through  whose 
want  of  skill  or  negligence  the  plaintiff  was  injured,  they  are 
not  responsible.  u  Where,"  says  Jewett,  J.  in  Pack  v.  The 
Mayor,  4  Seld.  222,  "  the  party  employing  has  the  selection  of 
the  party  employed,  it  is  reasonable  that  he  who  has  made 
choice  of  an  unskillful  or  careless  person  to  execute  his  orders, 


128  COURT  OF  COMMON  PLEAS. 

Treadwell  v.  The  Mayor,  &c. 

should  be  responsible  for  an  injury  resulting  from  the  want  of 
skill  or  want  of  care  of  the  person  employed."  This  is  the  rule 
with  the  reason  upon  which  it  is  founded  succinctly  stated. 
The  authority  to  erect  the  school-house  was  granted  by  the 
Board  of  Education,  and  the  contracts  for  its  erection  were 
entered  into  by  the  school  officers  of  the  Twelfth  Ward.  They 
contracted  with  Tucker  to  do  the  mason  work,  and  with  the 
plaintiff  to  do  the  carpenter  work,  and  as  the  injury  to  the 
plaintiff  arose  from  the  falling  in  of  the  wall  of  the  school 
house  in  the  course  of  its  erection,  through  the  negligence  or 
want  of  skill  of  Tucker,  the  defendants  are  not  answerable  for 
his  acts.  It  has  been  distinctly  settled  in  the  case  above  cited 
and  in  Kelly  v.  The  Mayor,  &o.,  1  Kern  an,  432,  and  in  Blake 
v.  Ferris,  1  Seld.  48,  that  the  relation  of  principal  and  agent 
or  master  and  servant  does  not  exist  unless  the  party  sought  to 
be  charged,  employed,  or  had  the  selection  of,  the  person  to 
whose  negligence  the  injury  is  attributable,  though  what  was 
done  was  for  that  party's  benefit,  and  though  it  may  have 
been  done  under  the  supervision  of  an  agent  or  officer  ap- 
pointed by  hini. 

But  independent  of  the  question  of  the  responsibility  of  the 
defendants,  the  principle  of  respondeat  superior  is  not  appli- 
cable in  the  case  at  all.  It  is  well  settled  in  this  State  that  an 
employer  is  not  liable  to  one  of  his  agents  or  servants  for  the 
negligence  of  another  of  his  servants  or  agents,  unless  he  was 
himself  at  fault  in  the  selection  of  the  agent,  or  in  some  other 
respect.  In  the  prosecution  of  a  general  enterprise  the  em- 
ployer does  not  warrant  to  each  person  who  engages  in  the  en- 
terprise the  competency  of  every  agent  employed,  and  cannot 
be  made  responsible  unless  it  is  shown  that  he  was  guilty  of  a 
want  of  care  or  of  negligence  in  the  selection  of  the  person 
through  whose  negligence  the  injury  occurred,  though  it  is 
otherwise  where  the  relation  of  master  and  servant,  or  of  prin- 
cipal and  agent  does  not  exist,  upon  grounds  of  public  policy, 
Tanant  v.  Webb,  18  Common  Bench,  797.  If  the  contract  in 
this  case  was  for  the  erection  of  a  wall  of  insufficient  width  or 
thickness,  and  the  injury  arose  from  putting  up  a  wall  of  that 
description,  the  principal  should  be  answerable  for  that  which 
was  the  direct  consequence  of  his  own  act.  Keegan  v.  The 
Western  R.  R.  Co.  4  Seld.  175.  But  it  was  clearly  shown  in 


NEW  YORK— FEBRUARY,  1861.  129 

Ogilvie  v.  Lightstone. 

the  case  that  the  falling  of  the  wall  was  not  attributable  to  any 
thing  in  the  contract,  plan  or  specification,  but  arose  from  the 
insecure  or  improper  way  in  which  Tucker,  the  mason,  laid  the 
foundation,  and  there  was  no  evidence  whatever  from  which 
the  jury  could  find  that  the  school  officers  were  guilty  of  want 
of  care  or  negligence  in  employing  Tucker  to  do  the  mason 
work. 

The  nonsuit,  therefore,  was  properly  granted. 


EDWARD  P.  OGILVIE  v.  SIMON  LIGHTSTONE. 

The  vendor  gave  a  deed  with  a  warranty  of  title,  and  a  covenant  that  the 
land  was  free  from  incumbrances,  except  an  outstanding  lease,  which  had 
two  years  and  seven  months  to  run.  The  vendee  gave,  in  part  payment, 
his  note,  with  an  agreement  that  so  much  should  be  deducted  from  the 
amount  of  it  as  he  should  be  compelled  to  pay  to  obtain  possession  of  the 
house  at  the  expiration  of  the  lease.  Before  the  expiration  of  the  lease,  the 
tenant  pulled  down  the  house.  Seld, — on  demurrer  to  the  answer,  in  an 
action  by  the  vendor  on  the  note,  that  the  vendee  could  not  counterclaim 
the  value  of  the  house. 

The  vendee,  as  the  owner  of  the  reversion,  had  his  remedy  against  the  lessee 
in  an  action  for  waste ;  or  if  the  lessee  had  a  right  to  take  the  house  away,  his 
remedy  was  upon  the  covenant  in  the  vendor's  deed. 

THIS  was  an  appeal  from  a  judgment  of  the  special  term  of 
this  Court,  sustaining  a  demurrer  to  the  answer.  The  action 
was  brought  upon  a  promissory  note  against  the  maker.  The 
defendant  after  denying  that  the  plaintiff  was  the  holder  or 
owner  of  the  note,  set  out  that  the  note  was  given  by  him  in  part 
payment  for  a  house  purchased  by  him  from  the  plaintiff.  That 
there  being  an  unexpired  lease  upon  the  house,  the  plaintiff 
had  agreed  with  him,  in  writing,  that  whatever  sum  or  sums 
of  money  should  be  required  to  obtain  possession  of  the  house 
from  the  lessee  on  the  first  of  May,  1859,  should  be  deducted 
from  said  note.  A  third  defence  was  set  up  by  way  of  coun- 


130  COUET  OF  COMMON  PLEAS. 

Ogilvie  v.  Lightstone. 

ter-claim  on  the  covenants  of  the  deed.  The  plaintiff  demurred 
to  the  second  defence.  The  special  term  sustained  the  de- 
murrer with  the  following  opinion  by 

BRADY,  J. — There  is  nothing  in  any  agreement  stated  in  the 
second  defence  set  up  which  would  entitle  the  defendant  to 
prove  the  damages  occasioned  by  the  act  of  Ellen  Clark,  the 
lessee  of  the  plaintiff,  complained  of  in  the  answer.  The  deed 
was  recorded  on  the  27th  of  April,  1858,  and  the  defendant 
had  the  entire  estate" at  that  time.  Any  injury  to  the  rever- 
sion after  that  time  would  give  to  the  defendant  a  right  of  ac- 
tion, and  not  to  the  plaintiff,  and  Ellen  Clark  became  liable  to 
the  defendant  for  the  damages,  which  the  defendant  seeks  to 
have  applied  to  the  satisfaction  of  the  plaintiff's  demand,  by 
way  of  counter-claim.  The  defendant  knew  when  the  agree- 
ment of  April  24,  1858,  was  executed,  that  the  premises  were 
in  the  possession  of  the  plaintiff's  lessee,  and  took  them  by 
deed  subject  to  the  lease  to  Ellen  Clark.  He  had  notice, 
therefore,  that  the  premises  were  not  in  the  possession  of  the 
plaintiff,  and  took  them,  subject  to  all  the  difficulties  that 
might  arise  from  that  circumstance.  The  conclusions  presented 
are  based  upon  the  assumption  that  the  agreement  relied  upon 
as  creating  the  counter-claim  is  such  as  would  be  enforced  at 
law,  but  that  it  would  be  is  very  doubtful.  The  parties  have 
committed  themselves  to  writing,  and  appear  to  have  covered 
in  that  way  the  whole  subject  of  their  dealings. 

Judgment  for  plaintiff  on  the  demurrer. 

From  the  judgment  entered  on  the  demurrer,  the  defendant 
appealed  to  the  general  term. 

Harrington  &  Grieff,  for  the  appellant. 
J.  W.  Cotterill,  for  the  respondent. 

BY  THE  COUET. — DALY,  F.  J. — The  plaintiff  gave  a  deed 
of  warranty  of  title  and  a  covenant  that  the  land  was  free  from, 
incumb ranees,  except  an  outstanding  lease,  which  had  two 


NEW    YORK— MARCH,   1861.  131 

Ogilvie  v.  Lightstone. 

years  and  seven  months  to  run.  If  the  lessee,  as  alleged  in  the 
answer,  tore  down  the  house  before  her  term  expired,  the  defen- 
dant, as  the  owner  of  the  reversion,  had  his  remedy  against  her 
in  an  action  for  waste  (1  Just,  53  ;  Kerr's  Action  at  Law,  93) ; 
or  if  she  had  the  right  to  take  the  house  away,  then  his  remedy 
was  upon  the  covenant  in  the  plaintiff's  deed. 

The  agreement  bears  date  after  the  deed,  but  is  alleged  in  the 
answer  to  have  been  executed  before  the  deed  was  delivered. 
It  provides  that  whatever  sum  or  sums  of  money  may  be  re- 
quired to  obtain  possession  of  the  house  and  lot  from  the  lessee 
on  the  first  day  of  May,  1859  (the  day  of  the  expiration  of  the 
lease),  it  shall  be  deducted  from  the  note  given  by  the  defen- 
dant to  the  plaintiff  as  part  of  the  consideration.  It  is  unneces- 
sary to  inquire  whether  this  agreement  was  or  was  not  merged 
in  the  deed  subsequently  given ;  for,  treating  it  as  collateral 
and  independent,  no  liability  on  the  part  of  the  plaintiff  has 
accrued  under  it.  The  house  having  been  taken  away  or  de- 
stroyed by  the  lessee  before  the  first  of  May,  1859,  no  sum  of 
money  could  be  required  to  obtain  possession  of  it  on  that  day 
or  afterward,  or  at  least  it  is  not  allege  d  that  any  sums  of 
money  were  expended  for  such  a  purpose.  The  error  of  the 
defendant  consists  in  supposing  that  he  would  be  entitled  to 
deduct  from  the  note,  under  the  agreement,  the  value  of  the 
house  carried  away  or  destroyed  by  the  lessee.  No  provision 
for  anything  of  that  kind  exists  in  the  agreement.  His  remedy 
for  that  act,  as  I  have  suggested,  is  against  the  lessee,  if  she 
had  no  right  to  take  the  building  away,  or  if  she  had,  against 
the  plaintiff  upon  his  covenant,  and  there  is  nothing  in  the  an- 
swer to  show, a  breach  of  that  covenant  on  his  part.  For  all 
that  appears  in  the  answer,  the  lessee  may  have  removed  the 
building  without  any  right,  in  which  case  the  remedy  is  against 
her.  The  judgment  at  the  special  term  therefore  was  correct. 

Judgment  affirmed. 


132  COURT  OF  COMMON  PLEAS. 


Thomas  v.  Kenyon. 


JAMES  THOMAS  v.  AMASA  KENYON. 


The  defendant's  ground  was  higher  than  the  plaintiff's,  and  its  natural  slope 
was  such,  that  the  water  rising  from  natural  springs  beyond,  following  the 
declivity  of  the  ground,  flowed  into  and  collected  in  a  hollow  on  defendant's 
lot,  directly  adjoining  the  plaintiffs  house.  At  the  time  plaintiff  purchased 
his  lot,  there  was  a  drain  and  culvert  which  carried  this  water  off  from  the 
defendant's  lot,  but  which,  before  the  commencement  of  this  suit,  had  been 
cut  off  and  filled  up  by  owners  of  lots  through  which  it  had  flowed.  The 
water  was  thus  thrown  back  upon  the  defendant's  lot;  and  from  thence 
flowed  into  the  plaintiff's  lot.  Directly  adjoining  the  plaintiff's  house,  and 
over  it  or  close  to  it,  the  defendant  had  built  a  lumber  shed,  the  roof  of  vSaich 
pitched  towards  the  plaintiff's  house,  from  which,  when  it  rained,  the  water 
ran  in  the  direction  of  the  plaintiff's  building.  The  plaintiff,  on  his  part,  had 
erected  wood  sheds  along  the  line  of  his  own  and  defendant's  lot,  the  roofs  of 
which  pitched  towards  the  defendant's  lot,  and  the  water  which  fell  upon  it 
when  it  rained  was  precipitated  upon  the  defendant's  lot.  The  water  thus 
collected  by  the  natural  declivity  of  the  ground  and  the  cutting  off  of  the 
watercourse  or  drain  and  by  the  roofs  erected  by  both  the  plaintiff  and 
defendant,  flowed  into  the  plaintiff's  lot,  and  frequently  submerged  the 
basement  of  his  house,  and  washed  away  parts  of  its  foundation. 

Held, — 1.  That,  although  the  defendant  could  not  be  held  answerable  for 
the  effect  produced  by  water  flowing  over  his  ground  towards  the  plaintiff's 
lot,  in  consequence  of  the  natural  formation  of  the  soil ;  yet,  it  appearing 
that  the  body  of  water  on  the  defendant's  lot  was  greatly  increased  by  the 
lawful  cutting  off  of  the  drain  and  culvert,  and  the  filling  in  of  adjacent 
sunken  lots  by  their  owners,  obligations  were  imposed  upon  the  defendant 
in  respect  to  his  own  lot,  which,  but  for  other  causes,  would  not  have  ex- 
isted, and  he  was  bound  to  adopt  reasonable  means  to  prevent  the  water 
from  collecting  and  remaining  on  his  premises. 

2.  The  fact  that  the  pitch  of  the  plaintiff's  roofs  tended  to  augment  the 
body  of  water  which  did  the  injury,  does  not  deprive  him  of  all  right  of 
action  for  the  injury  he  sustained  by  reason  of  the  defendant's  erection. 

The  mutual  or  co-operating  negligence  which  deprives  one  party  of  any  right 
of  action  against  the  other,  is  where  the  act  which  produced  the  injury 
would  not  have  occurred  but  for  the  combined  negligence  of  both. 

"Where  the  effect  of  the  negligence  of  one  party  is  to  produce  injury  to  a  cer- 
tain extent  in  any  event ;  that  is,  if  its  effeet  is  to  produce  a  certain  amount 
of  injury,  even  if  the  other  party  had  been  guilty  of  no  negligence  at  all, 
then,  though  the  negligence  of  the  other  party  may  have  rendered  the  lo?s 


NEW  YORK— MARCH,    1S61.  133 

Thomas  v.  Kenyon. 

or  injury  greater  than  it  would  otherwise  have  been,  still  they  are  not  the 
.     joint  authors  of  all  that  has  taken  place ;  and  it  is  possible  to  distinguish  the 
amount  of  .injury  caused  by  the  negligence  of  the  one,  from  the  amount  of 
injury  caused  by  the  negligence  of  the  other. 

And  in  such  a  case,  the  jury  have  a  right  to  discriminate,  and  to  hold  a  defen- 
dant responsible  for  damage  arising  from  causes  with  which  the  plaintiff 
had  no  agency. 

The  dimensions  of  a  roof  being  known,  and  the  number  and  character  of  the 
'  rain-storms  within  a  certain  period  being  shown,  the  jury  have  data  upon 
which  they  may  determine  the  quantity  of  rain  which  was  probably  precipi- 
tated from  the  roof  during  that  period. 

And  a  question  to  a  witness  as  to  the  quantity  of  such  rain  is  wholly  sci- 
entific, and  being  put  to  a  witness  who  was  not  shown  to  be  familiar  with 
the  laws  which  govern  the  subject,  was  properly  excluded. 

APPEAL  by  the  defendant  from  a  judgment  entered  at  trial 
term  on  the  verdict  of  ajar y. 

t 

The  action  was  brought  by  the  plaintiff  against  the  defen- 
dant, who  were  owners  of  adjoining  lots,  to  recover  damages 
caused  by  the  negligence  of  the  defendant  in  permitting  water 
to  run  from  his  premises  upon  those  of  the  plaintiff. 

A  part  of  the  defendant's  premises  were  sunken  and  inclined 
towards  the  plaintiff's.  The  complaint  alleges  that  "  the  de- 
fendant has  wantonly,  wilfully,  recklessly,  negligently,  wrong- 
fully and  maliciously  permitted,  and  suffered  divers  large 
quantities  of  water  to  form  and  collect  upon  the  sunken  part 
of  his  premises,  on  the  side  nearest  to  the  plaintiff,  and  to  re- 
main there,  working  its  way  and  penetrating  through  the 
ground  into  and  upon  the  plaintiff's  premises,  on  the  west  side 
thereof,  and  so  into,  upon  and  through  the  basement  of  his 
said  house,  upon  that  side,  overflowing  the  basement  on  that 
side,  rotting  and  destroying  the  floor,  wood-work  and  walls 
thereof,  and  the  west  wail  and  part  of  the  north  wall  of  the 
plaintiffs  house,  rendering  the  •  said  basement  on  that  side 
damp,  uncomfortable,  and  absolutely  unfit  for  occupation, 
softening  the  ground  under  the  house,  and  in  and  about  the 
foundation  wall,  on  the  west  and  a  part  of  the  north  side  of 
the  house,  weakening  and  endangering  those  parts  of  the  foun- 
dation-walls, and  so  impariug  and  diminishing  the  strength  and 
security  of  the  plaintiff's  said  house. 


134  COURT  OF  COMMON  PLEAS. 

Thomas  v.  Kenyon. 

"  That  there  has  been,  since  the  month  of  April,  1857,  or 
thereabouts,  a  public  sewer  running  through  West  43d  street, 
in  front  of  plaintiff's  and  defendant's  premises  upon  that  street ; 
and  that,  although  the  defendant  has  been,  since  that  time, 
well  aware  of  that  fact,  he  has  not  made  or  established,  and 
has  not  attempted  to  make  or  establish  any  connection  between 
his  premises  and  the  said  public  sewer,  for  the  purpose  of 
draining  or  carrying  off  the  water  so  forming  and  collecting 
upon  his  premises,  and  working  and  penetrating  through,  into 
and  upon  the  plaintiff's  premises  as  aforesaid. 

"  And  the  plaintiff  further  saith,  that,  during  all  the  tim.r>, 
from  the  said  thirteenth  day  of  July,  1855,  he  has  frequently 
called  the  attention  of  the  defendant  to  the  said  water,'  and 
particularly  to  the  injury  resulting,  as  above  stated,  to  the 
plaintiff's  premises  therefrom,  and  has  fully  acquainted  him 
therewith,  and  has  remonstrated  against  the  conduct  of  the  de- 
fendant, to  him,  personally,  in  permitting  or  suffering  the  said 
water  so  to  damnify  the  plaintiff's  property  as  aforesaid,  and 
has  requested  the  defendant  to  do  something  towards  prevent- 
ing the  same,  and  to  fill  up  the  sunken  portion  of  the  defen- 
dant's premises,  or  make  some  sort  of  drainage,  or  adopt  some 
mode  of  getting  rid  of  the  said  water  ;  and  has  offered  himself, 
if  permitted  by  the  defendant,  as  a  means  of  lessening  the  in- 
jury and  annoyance  to  his  (the  plaintiff's)  premises  and 
property,  to  fill  up  the  sunken  portion  of  the  defendant's  pre- 
mises on  the  side  towards  the  plaintiff's  premises  ;  yet  that  the 
said  defendant  has  neither  done  anything  himself,  nor  caused 
anything  to  be  done,  nor  permitted  the  plaintiff  to  do  as  he 
offered,  towards  or  for  the  purpose  of  discontinuing  the  said 
injury  to  the  plaintiff's  premises  and  property,  and  preventing 
the  same  for  the  future,  but  has  hitherto  wholly  omitted  and 
neglected  so  to  do,  and  has,  during  all  the  time  last  men- 
tioned, wantonly,  wilfully,  recklessly,  negligently,  wrongfully 
and  maliciously  kept  and  maintained  the  said  nuisance  upon 
his  premises,  to  the  serious  detriment  of  the  plaintiff,  and  with 
a  full  knowledge  thereof." 

Special  damages  are  then  alleged,  and  judgment  demanded. 

The  grounds  of  defence  appear  fully  in  the  opinion  of 
DALY,  F.  J. 

On  the  trial  the  Judge  (BKADY)  charged  the  jury  as  follows : 


NEW  YORK— MARCH,   1861.  135 


Thomas  v.  Kenvon. 


1.  As  a  general  rule,  a  man  who  exercises  proper  care  and 
skill,  may  do  what  he  will  with  his  own  property.     He  must 
not,  however,  under  color  of  enjoying  his  own,  set  up  or  main- 
tain a  nuisance  which  deprives  another  of  the  enjoyment  of  his 
property. 

2.  If  a  man,uses  his  own  property  in  such  a  negligent  and 
improper   manner   as  to   cause  an    injury  to   another,  he  is 
responsible  for  that  injury.     Every  man  in  the  enjoyment  of 
his  property  must  have  some  regard  or  consideration  for  his 
neighbor. 

3.  If  the  jury  believe  that  the  defendant  erected  a  shed 
along  the  west  gable  wall  of  the  plaintiff's  house,  as  described 
in  the  testimony,  (some  twelve  or  more  feet  wide,  and  some 
eighty  feet  long,  and  some  few  feet  from  that  wall,  but  sloping 
towards  it,  intended  to  protect  the  piles  of  lumber  against  the 
weather),  and  that  the  water  falling  upon  this  shed,  ran  off  it 
and  formed  or  collected  on  the  ground  near  this  wall,  and  was 
permitted  to  remain  there  an  unreasonable  time,  and  that  the 
defendant  was  aware  of  it,  and  either  did  nothing  to  prevent 
any  evil  results  therefrom,  or  resorted  to  no  reasonable  expe- 
dients with  that  view,  in  consequence  of  which  the  water  so 
forming  or  collecting  and  remaining,  percolated  or  strained 
through  this  wall,  doing  injury  to  it,  and  to  other  parts  of  the 
plaintiffs  house,  when  the  defendant,  by  exercising  reasonable 
or  ordinary  care,  could  have  averted  these  results,  he  is  respon- 
sible to  the  plaintiff. 

4.  The  same  principle  would  apply  to  the  stable  spoken  of 
in  the  evidence,  and  any  other  erections  upon  the  defendant's 
premises,  if  the  jury  believed  that  they  occasioned  injury  to 
the  plaintiffs  house,  under  circumstances  similar  to  those  sup- 
posed in  relation  to  the  shed. 

5.  If  the  ground  of  the  defendant's  premises  was  so  sloped 
on  the  surface,  as  that  the  water  falling  thereon  ran  to  and  col- 
lected along  the  west  gable  wall  of  the  plaintiff's  house,  and 
being  permitted  to  remain  there  an  unreasonable  time,  strained 
through  that  wall,  injuring  the  house,  and  the  defendant  was 
aware  of  it,  and  wantonly  or  as  the  result  of  indifference  or 
gross  negligence,  refrained  from  doing  any  tiling,  or  adopted  no 
reasonable  expedients  to  prevent  the  injury,  when  by  the 


136  COURT  OF  COMMON  PLEAS. 

Thomas  v.  Kenyon. 

adoption  of  reasonable  means  on  his  part  it  could  have  been 
prevented,  he  is  responsible  to  the  plaintiff. 

6.  It'  the  defendant  permitted  water  to  collect  upon  the  sur- 
face of  his  premises,  and  wantonly  or  recklessly,  or  negligently 
suffered  it  to  remain  there  until  it  strained  through  the  earth 
and  the  west  gable  wall  of  the  plaintiff's  house,  injuring  the 
house,  and  the  defendant  knowing  the  fact,  resorted  to  no  rea- 
sonable  expedients  for   the  prevention  of  this  injury,  he  is 
responsible  to  the  plaintiff. 

7.  The  defendant  was  bound  to  adopt  reasonable  means  to 
prevent  the  water  forming  or  collecting  and  remaining  upon 
his  premises  an  unreasonable  time,  and  it  is  for  the  jury,  as  a 
question  of  fact,  to  decide  or  say  what  was,  or  would  have  been, 
an  unreasonable  time,  and  what  reasonable  means  or  expe- 
dients on  the  part  of  the  defendant    could  have  been   taken 
to  prevent  injury  to  the  plaintiff,  and  whether  or  not  the  defen- 
dant adopted  or  resorted  to  them. 

8.  If  the  defendant  did  not  construct  or  erect  the  various 
alleged  causes  of  injury  to  the  plaintiff's  house,  it  is  for   the 
jury  to  say  whether  he  continued   them  during  the   time  for 
which  the  plaintiff  claims  to  recover,  with  a  knowledge  of  their 
existence  and  that  they  were  injurious  to  the  plaintiff's  prop- 
erty. 

9.  That  if  the  jury  believe  the  statement  of  the   plaintiff 
to  be  true,  that  he  had  erected  a  shed  on  the  west  line  of  his 
lot,  the  roof  of  which  projected  over  into  the  lot  of  the  deien- 
dant,  and  the  water  which  ran  from  it  went  to  swell  the  w:iter 
which  came  from  defendant's  lot  into  the  basement  of  plaintiff's 
house,  then  the  plaintiff  could  not  recover,  his  own  negligence 
contributing  to  the  injury  of  which  he  complained.     But  if  the 
jury  further  believed  that   the  plaintiff's   house  would   have 
been  injured  by  the  other  water  upon  the  defendant's  premises 
without  reference  to  the  contributions  they  received  from  this 
source,  in  consequence  of  the  defendant's  gross  negligence,  in 
not  trying  to  prevent  the  injury,  the  plaintiff  was  entitled  to 
recover  for  the  injury  done  to  his  house  by  the   other  waters 
from  the  defendant's  premises,  (distinct  from  those  contributed 
by  these  wood-sheds),  to  the  extent  the  jury  believed  that   in- 
jury to  have  been  done. 

10.  That  the  defendant  in  this  cause  was  not  responsible 


NEW  YORK— MARCH,   1861.  137 

Thomas  v.  Kenyon. 

for  the  water  which  passed  over  his  premises  from  Forty -fourth 
street,  and  reached  the  lot  of  the  plaintiff,  nor  would  he  be  re- 
sponsible for  water  which  came  from  a  bursted  hydrant  or 
pij>e,  unless  the  hydrant  or  pipe  was  on  his  premises. 

The  judge  also  charged  the  jury,  that  if  they  were  of  opin- 
ion that  the  lot  of  the  defendant  remained  in  its  natural  posi- 
tion, and  was  in  such  position  at  the  time  of,  and  before  the 
commencement  of  this  action,  the  plaintiff  could  not  re- 
cover, because  every  person  has  a  natural  right  to  the  use  of 
his  land  in  the  situation  in  which  it  was  placed  by  nature. 
And  further,  that  if  the  plaintiff  was  entitled  to  a  verdict,  he 
could  recover  only  to  the  extent  of  the  actual  injuries  proved 
by  the  evidence,  and  was  not  entitled  to  general  or  exemplary 
damages. 

The  defendant's  counsel  requested  the  judge  to  charge  that, 
where  the  claim  is  founded  upon  a  private  nuisance  and  the 
fault  is  natural,  the  plaintiff  cannot  recover. 

The  judge  declined  so  to  charge,  except  as  he  had  already 
charged. 

The  jury  brought  in  a  verdict  for  the  plaintiff;  and  a 
motion  for  a  new  trial  having  been  denied,  the  defendant 
appealed  to  the  general  term. 

John  JI.  White,  (  WJdte  &  Lowry]  for  appellants. 
John  Graham,  for  respondents. 

DALY,  F.  J. — The  water  deposited  on  the  defendant's  lot, 
and  which  sank  in  close  to  the  foundation  of  the  west  gable 
wall  of  the  plaintiff's  house,  as  well  as  the  water  which  flowed 
over  the  defendant's  lot  towards  the  lot  of  the  plaintiff,  and 
into  and  upon  the  plaintiff's  premises,  injuring  his  building, 
and  rendering  the  basement  of  his  house  untenantable,  was 
chiefly  owing  to  the  natural  formation  of  the  ground,  and  the 
cutting  off  of  existing  water-courses,  and  in  part  to  the  erection 
of  sheds  upon  the  lots  both  of  the  plaintiff,  and  of  the  defen- 
dant. 

The  plaintiff's  lot,  before  any  building  was  erected  upon  it, 
was  the  lowest  lot  in  the  neighborhood.  It  is  t-ituated  on  the 
northerly  side  of  west  Forty-third  street,  between  the  Tenth 


138  COURT  OF  COMMON  PLEAS. 

Thomas  v.  Kenyon. 

and  the  Eleventh  avenues,  and  the  lot  of  the  defendant,  which, 
adjoins  it  on  the  west,  inclines  or  slopes  toward  it.  To  the 
north  and  west  of  the  defendant's  lot,  the  laud  is  more  elevated. 
This  elevation  extending  as  far  as  the  Eleventh  avenue  and 
Forty-ninth  street,  with  an  easterly  inclination  or  descent  in 
the  direction  of  the  plaintiff's  lot.  Upon  this  higher  ground 
in  the  vicinity  of  Forty-ninth  street,  there  are  natural  springs, 
the  water  from  which  flows  over  the  surface  in  an  easterly  di- 
rection, across  the  defendant's  lot,  and  towards  the  lot  of  the 
plaintiff.  In  the  full  and  spring,  these  streams  were  more 
swollen  than  at  other  periods,  discharging  their  waters  over  the 
surface,  and  the  volume  of  water,  which  was  largely  increased 
when  it  rained,  following  the  natural  declivity  of  the  ground, 
flawed  in  the  direction  of  the  plaintiff* 's  lot.  His  lot  being  the 
lowest,  water  continually  remained  there,  and  before  it  was  built 
upon,  a  pond  existed  in  the  front  part  of  it,  large  enough,  in 
the  language  of  one  of  the  witnesses,  for  ducks  to  swim  in.  Af- 
ter his  building  was  erected,  a  drain  was  laid  across  the  centre 
of  his  lot,  uniting  with  similar  drains  upon  the  lots  to  the  east 
of  him,  which  connected  with  a  sewer  one  hundred  and  seventy- 
live  feet  east  of  the  defendant's  lot.  Fifty  feet  west  of  the 
plaintiff's  lot  there  was  also  a  culvert,  upon  the  lot  of  one 
McKenna,  which  served  to  carry  off  the  water  flowing  in  a  di- 
rection from  plaintiff 's  lot.  As  persons  commenced  building 
in  the  immediate  vicinity,  they  filled  up  or  stopped  the  drain 
referred  to,  and  the  water  therefore  flowed  over  the  surface, 
and  when  McKenna  built,  he  set  his  house  in  the  middle  of 
the  culvert,  and  thus  shutting  oft*  this  escape,  the  water  flowed 
over  the  lots  of  the  defendant  an.l  of  the  plaintiff*.  It  does  not 
appear  from  the  evidence,  that  the  defendant  did  anything  to 
alter  the  natural  situation  of  his  lot,  until  a  short  time  before 
the  commencement  of  the  suit,  and  what  he  then  did  had  a 
beneficial  effect,  as  it  tended  to  diminish  the  volume  of  water 
which  flowed  across  his  lot  in  the  direction  of  the  plaintiff's 
premises.  The  body  of  water  which  from  the  natural  forma- 
tions ran  towards  the  plaintiff's  lot,  was,  especially  during 
heavy  rains,  very  great,  descending  with  a  force  and  quanti:y, 
sufficient,  according  to  the  statement  of  the  witnesses,  to  turn 
two  or  three  grist  mills.  There  was  a  hollow  in  the  defendant's 
lot  directly  adjoining  the  plaintiff' 's  house,  and  over  it  or  close 


NEW  YORK— MARCH,  1861.  139 

Tkoinas  v.  Kenyon. 

to  it,  there  was  a  pile  of  boards  covered  with  a  shed  thirteen  feet 
wide  and  forty  feet  long,  the  roof  of  which  pitched  toward  the 
plaintiff's  house,  with  a  descent  of  seven  inches,  from  which, 
when  it  rained,  the  water  ran  in  the  direction  of  the  plaintiff's 
building,  and  remained  there,  the  place  being  nearly  always 
wet,  even  in  dry  weather.  The  plaintiff,  on  his  part,  had 
erected  a  wood-shed  along  the  line  of  his  own  and  the  defen- 
dant's lot,  the  roof  of  which  pitched  towards  the  lot  of  the  de- 
fendant. The  roof  of  these  sheds  was  four  or  five  feet  in  width 
and  about  forty  feet  long,  and  the  water  which  fell  upon  it  when 
it  rained  was  precipitated  upon  the  defendant's  lot,  increasing 
the  volume  of  water  there  deposited.  The  water,  when  it  came 
in  large  quantities,  completely  submerged  the  plaintiff's  base- 
ment, and  the  body  of  water  saturating  the  ground  alongside 
of  the  foundation  of  his  building  wore  its  way  through  the  in- 
terstices of  his  foundation  wall,  washing  away  the  mortar  from 
between  the  stones,  and  making,  in  the  language  of  a  witness, 
a  corn  crib  of  the  west  end  gable.  In  1856,  the  Corporation 
commenced  the  construction  of  a  sewer  in  Forty-third  street, 
which  was  completed  in  August,  1857.  In  December,  1856, 
the  plaintiff  was  allowed  to  connect  with  the  sewer,  as  yet  un- 
finished, but  this  did  not  afford  complete  relief,  as  the 
surface  water  still  continued  to  flow  towards  his  west  gable 
wall,  and  plaintiff's  basement  still  continued  wet  and  unfit  for 
habitation  at  the  commencement  of  this  suit  in  July,  1857. 
From  July,  1855,  until  he  connected  with  the  sewer  in  Forty 
third  street  in  December,  1856,  the  plaintiff  was  compelled  af- 
ter every  storm  to  have  the  water  pumped  out  of  his  basement, 
which  on  such  occasions  rose  two  feet  over  the  basement  floor. 
The  pumping  took  place  two  or  three  days  in  a  week,  and  for 
two  years  the  basement  was  never  entirely  free  from  water. 
Even  after  a  suit  was  commenced,  if  a  brick  were  taken  up  from 
the  hearth,  the  water  would  rise  and  in  half  an  hour  be  of  the 
depth  of  six  inches  upon  the  basement  floor. 

The  plaintiff  purchased  his  house  and  lot  in  1855,  and  from 
his  own  statement,  was  aware  of  its  disadvantageous  position  in 
respect  to  the  flow  of  water.  In  the  summer  or  fall  of  that 
year,  he  asked  the  defendant  it' he  would  till  up  his  lot,  or  do 
something  to  prevent  the  water  coming  upon  the  plaintiff 's 
premises ;  but  the  defendant  refused,  saying  that  he  should  do 


140  COURT  OF  COMMON  PLEAS. 

Thomas  v.  Kenyon. 

as  he  pleased  with  his  own  land.  In  the  summer  of  1856,  the 
plaintiff  asked  him  if  he  would  sell  his  lot  so  that  it  might  be 
drained,  but  he  answered  that  it  was  not  for  sale.  In  July, 
1857,  the  plaintiff  asked  him  why  he  did  not  connect  with  the 
sewer,  and  his  answer  was,  that  it  would  cost  money,  that  if 
he  wanted  a  connection  for  himself,  he  would  put  it  in.  He  was 
then  shown  the  injury  done  by  the  water  to  the  plaintiff's  build- 
ing, the  cracks  in  the  window-sills,  the  destruction  of  the  walls, 
by  the  mortar  coming  out  and  dropping  off,  but  he  made  no  re- 
mark, and  in  a  few  days  after,  the  plaintiff  commenced  this 
suit. 

I  have  stated  these  facts,  as  they -are  essential  to  the  full  un- 
derstanding of  the  question  that  we  are  required  to  pass  upon. 
In  view  of  the  changes  that  had  taken  place  in  the  neighbor- 
hood, it  was  certainly  the  duty  of  the  defendant  to  do  some- 
thing to  carry  off  the  water  which,  in  consequence  of  the  cutting 
off  of  the  previous  water-course  by  the  erection  of  buildings 
and  otherwise,  gathered  upon  his  lot,  sapping  the  foundation 
of  his  neighbor's  building,  and  rendering  the  lower  part  of  it 
uninhabitable.  It  does  not  appear  upon  the  testimony  whether 
the  drain  under  the  plaintiff's  house,  connecting  with  the  sewer 
east  of  the  defendant's  lot  and  the  culvert  on  the  lot  of  Mc- 
Kenna,  was  or  was  not  sufficient  to  carry  off  the  water  which 
from  the  natural  formation  of  the  ground  flowed  towards  the 
plaintiff's  lot,  but  it  did  appear  from  the  defendant's  own  tes- 
timony, that  when  these  water-courses  were  cut  off  by  the 
buildings  and  improvements  in  the  vicinity,  the  effect  of  it  was 
to  cause  a  large  body  of  water  to  collect  upon  the  defendant's 
lot.  It  collected  chiefly  in  the  hollow  upon  the  lot  previously 
referred  to,  immediately  adjoining  the  west  gable  wall  of  the 
plaintiff's  building.  If  was  shown  that  by  banking  up  earth 
upon  the  side  of  the  lot  he  could  have  changed  the  direction 
of  this  water,  or  have  carried  it  off  by  connecting  with  the 
sewer  in  43d  street,  after  the  erection  of  that  sewer  had  been 
commenced  ;  and  it  cannot  be  that  a  party  is  justified  in  allow- 
ing water  thus  to  collect  upon  his  lot  to  the  serious  detriment 
and  damage  of  his  neighbor,  when-  it  is  in  his  power,  by  a 
moderate  expenditure,  to  turn  it  off.  He  was  urgently  re- 
quested to  do  something,  even  to  sell  his  lot  to  the  plaintiff, 
but  persistently  refused  to  do  anything  until  he  thought  pro- 


'NEW  YORK— MARCH,    1861.  141 

Thomas  v.  Kenyon. 

per  to  fill  up  bis  lot  for  his  own  convenience.  If  the  land  in 
the  vicinity  remained  in  its  original  state,  the  proprietor  of  the 
plaintiff's  lot  would  have  to  bear  the  consequences  of  putting 
up  a  building  upon  ground  so  disadvantageous^  situated. 
Neither  the  defendant  nor  any  other  proprietor  of  adjoining 
lots  could  be  held  answerable  for  the  effects  produced  by 
water  flowing  over  their  ground  towards  the  plaintiff's  lot  in 
consequence  of  the  natural  formation  of  the  soil.  A  party 
building  upon  a  lot  so  low  should  furnish  means  for  efficiently 
draining  it,  or  if  that  were  impossible,  he  would  have  to  bear 
the  result  of  his  want  of  foresight  in  building  upon  land  in 
such  a  condition.  But,  for  all  that  appeared  in  the  case,  the 
means  resorted  to  when  the  plaintiff's  building  was  erected, 
may  have  been  amply  sufficient  to  carry  off  the  water.  But 
whether  this  was  so  or  not,  it  is  clearly  shown  by  the  testi- 
mony, that  the  body  of  water  upon  the  defendant's  lot  was 
greatly  increased  after  the  cutting  off  of  the  drain  and  culvert 
referred  to,  and  in  my  opinion,  the  change  produced  by  the 
lawful  exercise  of  the  right  which  the  proprietors  of  the  other 
lots  had  to  put  up  buildings  upon  their  lots,  imposed  upon  the 
defendant  obligations  in  respect  to  his  own  lot  which,  but  for 
those  causes,  would  not  have  existed.  His  rights  are  to  be 
taken  in  connection  with  the  rights  of  all  the  adjoining  propri- 
etors, and  viewing  them  collectively,  an  obligation  may  arise 
which  is  the  necessary  consequence  of  the  levelling  and  filling 
in  of  lots,  the  erection  of  buildings,  and  of  the  grading  and 
pitch  of  streets  in  a  new  part  of  the  city.  The  owner  of  a  lot, 
when  changes  and  improvements  are  taking  place  everywhere 
around  him,  has  no  right  to  insist  that  his  lot  shall  remain  a 
standing  cess-pool  for  water  to  collect  in,  to  the  serious  injury 
of  those  who  have  erected  buildings  upon  the  lots  whicli 
adjoin  him,  when  it  is  in  his  power  to  adopt  the  same  means 
which  they  have  used  to  connect  with  existing  drains.  I  think 
the  charge  of  the  judge,  thejjefore,  upon  the  point,  was  correct, 
and  that  the  exception  to  it  was  not  well  taken. 

The  instruction  contained  in  the  third  and  fourth  propositions 
submitted  by  the  judge  to  the  jury  was  justified  by  the  evi- 
dence. The  defendant  was  certainly  responsible,  if  the  water 
from  the  roof  of  his  stable  or  lumber  shed  was  precipitated 
close  to  the  plaintiff's  wall,  and  tended  to  undermine  the  foun- 


H2  COUKT  OF   COMMON  PLEAS. 

Thomas  v.  Kenyon. 

dation  of  the  plaintiff's  building.  No  man  is  justified  in  so 
using  his  own  land  as  to  injure  the  building  upon  the  land  of 
his  neighbor,  when  he  can  avoid  it  by  the  exercise  of  reason- 
able and  ordinary  care. 

It  is  assumed  on  the  part  of  ttie  defendant  that  this  is  a  case 
of  mutual  or  co-operating  negligence,  as  water  flowed  from  the 
plaintiff's  wood  shed  upon  the  defendant's  lot,  close  to  the  line 
of  the  plaintiff's  lot,  and  as  the  plaintiff  thus  contributed  by 
his  own  act  to  swell  the  body  of  water  resting  there,  and 
which  caused  the  injury,  that  he  has  no  right  of  action  against 
the  defendant;  and  to  the  refusal  of  the  judge  so  to  instruct 
the  jury,  and  to  the  instruction  which  he  did  give  upon  the 
point,  the  defendant  excepted.  The  plaintiff  was  certainly 
guilty  of  negligence  in  so  pitching  the  roof  of  his  wood  shed 
as  to  cast  the  water  from  it  upon  the  defendant's  lot,  thus  aug- 
menting the  body  of  water  which  collected  there  ;  but  it  did 
not  appear  from  the  evidence  that  the  plaintiff's  wood  shed  ex- 
isted there  prior  to  the  year  1856.  All  that  appears  in  the  case 
is  that  the  defendant  saw  them  there  during  that  year,  and 
the  injury  to  the  plaintiff's  premises  from  water  from  the  de- 
fendant's lot  is  to  be  traced  back  to  July,  1855.  The  plaintiff 
testified  that  after  every  storm  from  July,  1855,  to  December, 
1856,  when  he  connected  with  the  unfinished  sewer  in  Forty- 
third  street,  the  water  ran  into  his  basement,  and  that  he  had 
to  pump  it  out.  The  judge  therefore  had  no  right  to  assume 
that  the  plaintiff's  wood  sheds  were  there  during  the  six 
months  preceding  the  year  1856,  and  if  any  presumption  is  to 
be  derived  from  the  evidence,  it  is  that  they  were  not.  For 
the  injury  suffered  during  the  period,  and  to  which  he  in  no 
way  contributed,  the  plaintiff  clearly  had  a  right  of  action,  and 
of  which  he  would  have  been  deprived  if  the  Judge  had 
charged  as  requested. 

Nor  does  the  fact  that  the  pitch  of  the  roof  of  the  plaintiff's 
wood  sheds  tended  to  augment  tlte  body  of  water  which  did 
the  injury,  necessarily  deprive  him  of  all  right  of  action  for  the 
injury  he  sustained  after  the  wood  sheds  were  erected.  The 
mutual  or  other  co-operating  negligence  which  deprives  one 
party  of  any  right  of  action  against  the  other,  is  where  the  act 
which  produced  the  injury  would  not  have  occurred  but  for 
the  combined  negligence  of  both.  There  may  be  mutual  negli- 


NEW   YOKE— MARCH,  1861.  143 

Thomas  v.  Kenyon. 

gence  and  yet  one  party  have  a  right  of  action 'against  the 
other.  If  a  man  negligently  lie  down  and  fall  asleep  in  the 
middle  of  the  public  road,  and  another,  failing  to  exercise  or- 
dinary care,  should  drive  over  him,  the  party  injured  would 
have  a  right  of  action  against  the  other.  ^Kerrohdkof  v.  The 
Cleveland,  Columbus  and  Cincinnati  R.  R.  Co.  3  Ohio  R.  1 72, 
N.  S ;  Trow  v.  Vermont  Central  R.  R.  Co.  24  Term.  494 ; 
Dame,  v.  Mann,  10  Mees  &  Welsby,  545  ;  Butterfield  v.  For- 
rester, 10  East,  60.  For  though  the  party  lying  upon  the  road 
was  guilty  of  negligence  in  going  to  sleep  in  such  a  place,  still 
it  waa  not  his  act  that  caused  the  injury,  but  the  want  in  the 
other  party  of  ordinary  care,  by  the  exercise  of  which  he 
could  have  driven  around  and  avoided  the  obstacle.  On  the 
other  hand,  if  a  vehicle  is  driven  at  an  improper  rate  of  speed 
through  a  street,  and  a  passenger  who  sees  it  approaching  im- 
properly attempts  to  cross,  in  the  expectation  that  he  will  be 
able  to  pass  before  it  can  reach  the  spot  where  he  crosses,  and 
he  is  injured  by  coming  in  contact  with  it,  that  is  a  case  in 
which  the  united  negligence  of  both  co-operated  and  produced 
the  accident  which  otherwise  would  not  have  occurred. 
Where  such  is  the  case,  both  parties  are  the  joint  authors  of 
the  act  which  caused  the  injury,  and  the  degree  or  proportion 
in  which  each  may  have  contributed  to  produce  it  is  immate- 
rial, as  one  is  not  entitled  to  have  satisfaction  from  the  other 
for  an  act  which  had  its  origin  in  their  mutual  negligence. 
But  if  the  effect  of  the  negligence  of  one  party  was  to  produce 
injury  to  a  certain  extent  in  any  event  ;  that  is,  if  its  effect 
waa  to  produce  a  certain  amount  of  injury,  even  if  the  other 
party  had  been  guilty  of  no  negligence  at  all,  then,  though  the 
negligence  of  the  other  party  may  have  rendered  the  loss  or 
injury  greater  than  it  would  otherwise  have  been,  still  they 
are  not  the  joint  authors  of  all  that  has  taken  place,  and  it  is 
possible  to  distinguish  the  amount  of  injury  caused  by  the  neg- 
ligence of  the  one,  from  the  amount  of  injury  caused  by  the 
negligence  of  the  other.  In  the  case  which  I  have  put,  where 
collision  is  produced  by  the  imprudent  act  of  the  passenger 
and  the  neglect  of  the  driver,  the  whole  damage  is  the  result 
of  their  mutual  agency,  and  no  part  of  it  can  be  said  to  be  the 
result  of  the  act  of  the  one  any  more  than  of  the  act  of  the 
other.  There  may  be  more  fault  upon  one  side  than  upon  the 


COURT   OF  COMMON  PLEAS. 


Thomas  v.  Keuyon. 


other,  but  the  degree  of  fault  is  not  distinguishable  in  the 
damage  done,  and  therefore,  there  can  be  no  apportionment, 
and  consequently  no  recovery.  But  if  a  certain  amount  of 
damage  was  caused  by  the  act  of  the  defendant,  and  an  ascer- 
tainable  amount  by  the  act  of  the  plaintiff,  it  does  not  follow 
because  *the  plaintiff  by  his  act  increased  the  amount  of 
his  damage,  that  he  is  to  have  no  remedy  against  the  defen- 
dant for  the  damage  which  was  caused  by  the  acts  of  the  de- 
fendant alone  ;  and  that  is  exactly  the  present  case. 

It  is  manifest  from  the  testimony  that  the  chief  injury  to  the 
plaintiff's  premises  w.as  produced  by  the  water  which  flowed  in 
such  large  quantities  over  the  defendant's  lot,  and  lodged  upon 
it,  close  to  the  plaintiff's  building.  It  was,  as  has  been  shown, 
mainly  owing  to  the  existence  of  springs  in  the  elevated 
ground  above,  and  to  the  cutting  off  of  the  existing  water 
courses.  The  water  precipitated  from  the  defendant's  lumber 
shed  and  from  the  plaintiff's  wood  sheds  when  it  rained, 
undoubtedly  increased  the  whole  body  of  water  that  collected 
in  such  close  proximity  to  the  plaintiff's  building  ;  but  the  con- 
tribution from  these  sources  must  have  been  slight  as  com- 
pared with  the  water  that  continued  constantly  to  collect  there 
from  the  other  causes.  It  was  possible,  therefore,  for  the  jury 
to  form  some  judgment  as  to  the  extent  to  which  the  plaintiff 
had  been  damaged  by  the  acts  of  the  defendant  alone,  and  I 
think  that  in  such  a  case  they  had  a  right  to  discriminate,  and 
hold  the  defendant  responsible  for  damages  arising  from 
causes  with  which  the  plaintiff  had  no  agency.  I  think  the 
instruction  given  by  the  judge,  therefore,  upon  this  point,  was 
correct. 

But  though  the  judge  instructed  the  jury  that  if  the  plaintiffs 
house  had  been  injured,  and  irrespective  of  the  contribution  of 
water  from  his  own  wood  shed,  he  would  be  entitled  to  recover 
for  injury  done  by  other  waters  proceeding  from  the  defen- 
dant's premises,  he  excluded  upon  the  trial,  under  the  defen- 
dant's exception,  a  question  asked  with  the  view  of  showing 
the  amount  of  water  which  came  from  the  defendant's  wood- 
sheds in  proportion  to  the  whole,  which  was  certainly  erroneous. 
Unless  the  jury  had  some  information  as  to  the  proportion  of 
water  that  came  from  the  plaintiff's  wood-sheds,  they  could 
not  discriminate,  and  the  shutting  off  of  all  inquiry  upon  this 


'NEW   YOKK— MAKCIJ,   1861.  145 

Thomas  v.  Kenyon. 

point  must  have  operated  to  the  defendant's  prejudice.  For 
this  error,  which  is  the  only  one  I  find  in  the  case,  a  new  trial 
must  be  granted. 

BRADY,  J. — The  question  asked  the  witness  Auld,  viz : 
What  relative  amount  of  water  to  the  whole  in  Mr. 
Thomas's  yard  comes  from  the  defendant's  lot?  should  not 
have  been  allowed.  The  witness  had  stated  that  he  had  seen 
water  falling  from  the  wood-shed  of  the  plaintiff  on  the  defen- 
dant's land,  having  been  in  the  defendant's  lot  when  it  rained, 
and  there  was  no  pretence  that  he  knew  of  water  running  or 
falling  upon  the  defendant's  lot,  except  that  which  fell  from 
the  shed.  He  did  not  state  that  he  knew  how  many  rain-storms 
had  taken  place  during  the  period  it  was  alleged,  and  proved, 
that  the  defendant  had  permitted  the  water  to  accumulate  on 
his  lot,  or  that  he  knew  of  the  violence  of  such  storms.  He 
had  seen  water  falling  from  the  plaintiff's  wood-shed  often, 
and  nothing  more.  If  he  had  been  asked  as  to  the  extent  of 
the  water  which  he  saw  thus  falling,  the  question  would  hare 
been  proper  ;  but  it  was  much  broader,  being  general,  and  un- 
limited as  to  time.  He  was  to  state  the  relative  quantity  of 
water  to  the  whole  in  the  defendant's  yard  which  came  from 
the  plaintiff's  lot,  and  he  was  not  shown  to  possess  the  neces- 
sary knowledge  or  information  on  that  subject  to  enable  him 
to  express  an  opinion.  The  dimensions  of  the  shed  had  been 
given,  and  the  plaintiff  had  admitted  that  the  rain-water  ran 
from  his  shed  upon  the  defendant's  lot,  but  the  quantity  was 
not  stated.  The  dimensions  of  the  shed  being  known,  and  the 
number  and  character  of  the  rain-storms  as  to  violence  being 
shown,  the  jury  would  have  had  the  data  by  \vhich  such  quan- 
tity could  be  determined,  or  the  witness  being  competent 
thereto,  might  make  and  state  an  estimate.  The  question  which 
was  put  to  Auld  was  scientific  in  its  whole  breadth  and  scope, 
and  could  not  have  bi'en  answered  without  some  knowledge  of 
laws  with  which  he  was  not  shown  to  be  familiar.  'The  same 
reasoning  applies  to  the  next  question  asked  of  Auld.  I  think 
the  judgment  should  not  be  reversed,  therefore,  for  the  exclu- 
sion of  these  questions ;  and  there  being  in  the  case  evidence 
that  some  water  had  fallen  from  the  plaintiff's  shed  upon, 
the  defendant's  land,  it  was  the  duty  of  the  judge  to  charge 


146  COURT  OF  COMMON  ?LEAS. 

Thomas  v.  Kenyon. 

the  ninth  proposition,  and  upon  such  proposition  it  was 
immaterial  what  quantity  of  water  was  contributed  from 
the  plaintiff's  shed.  The  jury  were  therein  told  that  if  they 
believed  that  the  water  which  ran  from  the  plaintiff 's  shed 
went  to  swell  the  water  which  came  from  the  defendant's  lot 
into  the  basement  of  the  plaintiff's  house,  then  the  plaintiff 
could  not  recover,  his  own  negligence  contributing  to  the  in- 
jury of  which  he  complained.  The  defendant's  neglects  in  this 
respect  were  not  dependent  upon  the  quantity  of  water  which 
came  from  the  plaintiff's  shed.  His  liability  was  based  upon 
the  question  whether  the  plaintiff's  house  would  have  been  in- 
jured by  the  other  water,  in  consequence  of  the  defendant's 
gross  negligence  in  not  trying  to  prevent  the  injury.  If  the 
defendant  wished  to  prove  the  contributions  of  water  from  the 
plaintiff's  lot,  he  should  have  adopted  the  proper  means  of 
establishing  the  fact,  which  he  did  not  do,  and  he  had  the  ad- 
vantage of  all  the  proof  on  that  subject  in  the  case.  The  evi- 
dence warranted  the  finding  of  gross  negligence,  and  it  was 
upon  that  theory  that  the  verdict  was  given.  His  attention 
had  been  called  to  the  injury  the  plaintiff  was  sustaining,  and 
he  refused  to  do  anything  to  obviate  it,  expressing  a  determin- 
ation to  do  as  he  pleased  with  his  own  land. 

The  judgment  should  be  affirmed. 

HILTON,  J. — I  agree  with  Judge  BRADY,  that  the  witness, 
Auld,  was  not  shown  to  possess  any  knowledge  which  would 
justify  his  giving  more  than  a  mere  opinion,  or  guess,  respect- 
ing the  matter  inquired  of.  In  this  view,  I  think  the  questions 
put  to  him  in  regard  to  the  relative  quantity  of  water  which 
came  from  the  plaintiff's  shed  were  properly  overruled. 

With  this  single  exception,  I  concur  in  Judge  DALY'S  opin- 
ion. 

The  judgment  should  be  affirmed. 


NEW  YORK— MAY,   1861.  141 


Adams  v.  Cole. 


JTTLICTS  L.  ADAMS  v.  RHOA.DES  COLE. 

A  general  agent  or  clerk  employed  to  make  sales  of  goods  and  require  pay- 
ment therefor,  who  obtains  payment  of  false  bills  by  fraud  or  deceit, — Held, 
as  acting  within  the  scope  of  his  emplo3rment,  and  his  principal  is  liable  for 
the  amount  thus  obtained ;  especially  where  there  is  some  evidence,  how- 
ever slight,  that  the  agent  paid  the  sum  collected  to  his  employer. 

APPEAL  by  the  defendant  from  a  judgment  of  the  First 
District  Court. 

The  action  was  brought  to  recover  the  sum  of  $76  05,  paid 
by  the  plaintiff  to  the  defendant  on  the  false  representations  of 
the  defendant's  agent.  One  Gould  was  the  general  agent  of  the 
defendant  for  selling  salt,  making  out  and  collecting  bills,  &c. 
The  plaintiff  bought  a  bill  of  salt  of  the  defendant  on  the  10th 
day  of  April,  1858,  amounting  to  $76  05,  which  was  paid  by 
the  plaintiff's  clerk,  on  the  28th  of  May  following.  It  is 
alleged  that  one  James  Gould  went  to  the  plaintiff's  store  with 
a  bill  for  the  same  amount,  which  the  plaintiff's  clerk  paid, 
and  for  which  Gould  gave  a  receipt. 

On  the  trial,  the  plaintiff  and  other  witnesses  swore  that 
Gould  had  since  seen  his  receipt  given  on  the  second  payment, 
and  had  admitted  that  it  was  in  his  handwriting.  Gould  de- 
nied having  received  the  money,  but  stated  that  he  never  col- 
lected anything  from  the  plaintiff  which  he  had  not  paid  over 
to  the  defendant. 

Judgment  was  rendered  for  plaintiff,  and  the  defendant 
appealed , 

BY  THE  COURT. — HILTON,  J. — Gould  was  the  general  agent 
or  clerk  of  the  defendant,  to  make  sales  of  goods  and  receive 
payment  therefor,  and  for  any  deliberate  fraud  or  deceit  prac- 
ticed by  GouM  within  the  scope  of  his  employment,  the  defen- 
dant was  liable,  upon  the  ground  stated  by  Lord  Oh.  J.  Holt, 
in  Hern  v.  Nicholls  (1  Salk.  289),  that  as  some  one  must  be  a 
loser  by  the  deceit,  it  is  more  reasonable  that  he  who  employs 


148  COURT   OF  COMMON  PLEAS. 

Fash  v.  The  Third  Avenue  R.  R.  Compkny. 

and  *  confides  in  the  deceiver  should  be  the  loser  than  a 
Btranger.  Smith's  Mercantile  Law,  182  :  Taylor  v.  Green,  8 
Carr.  &  P.  316. 

But  it  is  unnecessary  to  place  our  decision  of  the  present 
case  on  this  principle,  as  there  was  some  evidence  before  the 
justice  to  show  that  Gould  paid  over  to  the  defendant  the  mo- 
ney received  by  him  from  the  plaintiff,  on  June  4th,  1858. 
We  must,  therefore,  assume  that  the  justice  found  such  to  be 
the  fact,  and  as  there  cannot  be  a  doubt  from  the  testimony 
that  this  money  was  paid  to  Gould  by  the  plaintiff,  under 
mistake  of  fact,  in  respect  to  which  both  parties  were  equally 
bound  to  be  informed,  it  follows  that  the  judgment  given  was 
right,  and  should  be  affirmed.  Canal  Bank  v.  Bank  of 
Albany,  1  Hill,  287 ;  Bank  of  Commerce  v.  Union  Bank, 
3  K  Y.  230. 

Judgment  affirmed. 


ANDREW  FASH  v.  THE  THIKD  AVENUE  RAILROAD  COMPANY. 

A  railroad  company  having  undertaken  to  lay  down  a  rail  track  along  a  street 
which  is  a  public  road,  are  bound  to  lay  it  down  properly,  and  to  keep  it  in 
a  proper  condition  thereafter.  It  is  a  question  for  the  jury  to  determine 
whether  they  have  done  so  or  not. 

And  where,  by  the  sinking  of  the  pavement,  a  spike  in  the  rail  was  left  exposed 
with  which  plaintiff's  carriage  coming  in  contact,  the  plaintiff  was  thrown 
out  and  injured, — Held,  that  the  company  was  guilty  of  negligence,  and  the 
plaintiff  might  recover. 

It  is  wholly  immaterial  whether  the  projection  of  the  spike  resulted  from  the 
failure  of  the  city  corporation  to  repair  the  street  in  the  locality  of  the  acci- 
dent. The  injury  to  plaintiff  resulted  from  the  defendants  permitting  the 
spike  to  project. 

Held,  therefore,  that  the  judge  properly  refused  to  charge  the  jury  that  if  the 
defect  in  the  track  was  owing  to  the  condition  of  the  streets,  or  of  the  gut- 
ters alongside,  the  plaintiff  could  not  recover. 


NEW  YORK—  MAY,    1861.  149 

Fash  v.  The  Third  Avenue  R.  R.  Company. 

A  refusal  to  charge  the  jury  that  if  the  rest  of  the  avenue  was  open  and  fit  for 
plain  tiff's  wagon,  he  could  not  recover  for  the  defective  condition  in  the 
pavement,  —  Held,  proper. 

Where  the  complaint  was  not  given  in  evidence,  and  the  plaintiff  was  not  asked 
any  questions  in  relation  to  its  contents,-  J3eZd,  that  the  judge  properly  refused 
to  charge  the  jury  that  the  discrepancy  between  the  plaintiff's  sworn  com- 
plaint, and  his  evidence  and  the  testimony,  might  be  taken  into  consideration 
in  considering  his  credibility. 

APPEAL  by  the  defendants  from  a  judgment  entered  on  a 
verdict  of  the  jury  at  the  Trial  Term. 

The  action  was  brought  to  recover  damages  for  injuries  to 
the  plaintiff  by  his  being  thrown  from  his  carriage,  caused  by 
its  coming  in  contact  with  spikes  protruding  from  the  rail  or 
sleeper  of  the  defendants'  road  in  Third  avenue.  The  road  was 
at  the  time  of  the  injury  temporarily  located  at  one  side  of 
the  street,  'to  enable  the  city  corporation  to  construct  a  sewer. 
The  paving  blocks  next  the  rails  had  settled  below  the  rail,  so 
as  to  leave  the  spikes  exposed. 

The  defense  was,  that  the  settling  of  the  paving  blocks  was 
caused  by  the  flooded  condition  of  the  street  ;  that  owing  to  the 
want  of  any  gutter  stones  it  was  impossible  to  keep  the  blocks 
chock  up  to  the  rail  ;  and  that  owing  to  t,he  excavations  for  the 
sewer,  there  were  not  two  feet  of  the  pavement  on  the  curb- 
stone side,  where  the  injury  occurred,  which  they  could  keep  in 
repair  as  required  to  do  by  city  ordinance. 

On  the  trial,  the  Judge  (DALY,  F.  J.)  refused  to  charge  the 
jury,  tli  at  if  the  rest  of  the  avenue  was  open  and  fit  for  the 
plaintiff's  wagon,  he  could  not  recover  for  the  defective  con- 
dition of  the  blocks. 

The  Judge  also  reftifed  to  charge  the  jury,  that  if  the  alleged 
defect  in  the  track  was  owing  to  the  conditkm  of  the  street,  or 
of  the  gutters  alongside,  the  plaintiff  could  not  recover. 

The  Judge  also  refused  to  charge,  that  the  discrepancy  be- 
tween plaintiff's  sworn  complaint,  and  his  evidence  and  the 
testimony,  might  be  taken  into  consideration  in  considering  his 
credibility. 


.  Potter,  for  appellants. 
The  defendants  are  not  liable  to  t.he  plaintiff  because  of  the 
defective  condition  of  the  street.     The  city  owns  the  fee  of  tho 


150  COURT  OF  COMMON  PLEAS. 

Fash  v.  The  Third  Avenue  R.  R  Company. 

streets  j  it  is  charged  with  the  duty  of  keeping  them  in  repair. 
The  defendants  never  agreed  to  perform  that  duty  ;  at  the  ut- 
most, only  "to  bec'ome  bound"  to  do  it.  That  contract  is  be- 
tween them  arid  the  city  ;  the  city's  rights  were  never  assigned 
to  the  plaintiff,  and  he  can  have  no  privity  with  it.  Hutson 
v.  The  Mayor,  5  Selden,  168  ;  Sailly  v.  Cleveland,  10  Wend. 
156  ;  Lane  v.  Cotton,  12  Mod.  488  ;  Dunlap's  Paley,  396. 

Win.  C.  Carpenter,  and  H.  D.  Lapaugh,  for  respondents. 

I.  It  is  immaterial  whether  by  the  grant  of  the  Corporation 
of  the  City  of  New  York  to  the  defendants  to  build   the   rail- 
road in  question  they  were  to  keep  the  track  in  repair  and  pave 
alongside  of  the  rails,  for  by  the  rule  of  the  common  law   the 
defendants  are  bound  so  to  construct  and  maintain  their  road 
that  people  passing  over  and  alongside  of  it  can  do  so  without 
being  in  danger  from  any  defect  in  the  original  construction  of 
the  road,  or  from  any  neglect  in  not  keeping  it  in  good  condi- 
tion. 

II.  The  defendants  having  undertaken  to  lay  down  a  rail 
along  the  Third  avenue,  which  is  a  public  highway,  they  were 
bound  to  lay  it  down  properly  and  in  such  a  manner  that  peo- 
ple  could  pass   along  with  safety,  and  to  see  that  it  was  af- 
terwards kept  in  a  proper  condition ;  if  they  did  not  so  con- 
struct the  same,  or  if  properly  constructed,  and  they  afterwards 
permitted  it  to  remain  out  of  repair,   and  injury  was   caused 
thereby,  they  are  liable  for  the  consequences.     Cook  v.  jV.  Y. 
Floating  Dry  Dock  Co.,  1  Hilton,  436. 

BY  THE  COURT. — BRADY,  J. — The  cause  of  the  injuries  sus- 
tained by  the  plaintiff  in  this  action  was  the  projection  of 
iron  spikes  from  component  parts  of  the  bed  or  support  of  the 
fails  laid  down  by  the  defendants.  It  was  wholly  immaterial 
whether  Jhe  projection  was  caused  by  the  failure  of  the  Corpo- 
ration of  the  City  of  New  York  to  repair  the  street  in  the  lo- ' 
cality  of  the  accident.  In  the  language  of  the  Judge  who  pre- 
sided at  the  trial,  the  defendants  "  having  undertaken  to  lay 
down  a  rail  track  along  the  avenue,  which  was  a  public  road, 
they  were  bound  to  lay  it  down  properly,  and  to  see  that  it 
was  kept  in  a  proper  condition  thereafter ;  and  it  was  for  the 
jury  to  determine  whether  they  had  done  so  or  not." 


NEW  YOKE— MAY,   1861.  151 

Mudgett  v.  The  Bay  State  Steamboat  Company. 

It  is  very  clear  on  the  evidence,  that  if  the  defendants  had 
not  permitted  the  spikes  to  project  as  stated,  the  accident 
would  not  have  occurred.  It  was,  therefore,  the  result  of  their 
negligence.  For  these  reasons  the  second  request  of  the  de- 
fendants to  charge  was  properly  denied. 

The  fir.-t  request  was  properly  refused,  because  the  plaintiff 
had  a  right  to  travel  on  that  part  of  the  avenue  which  he 
selected,  and  was  not  there,  therefore,  unnecessarily  or  unlaw- 
fully. 

The  third  request  was  also  properly  denied .  The  complaint 
does  not  appear  to  have  been  given  in  evidence,  and  the  plain- 
tiff was  not  asked  any  questions  in  relation  to  its  contents.  The 
defendants  had  no  right  to  ask  a  direction  on  the  assumption  of 
proof  which  was  not  given  in  the  case. 

The  judgment  should  be  affirmed. 


BENJAMIN  F.  MUDGETT  v.  THE  BAT  STATE  STEAMBOAT  COM- 
PANY. 

The  plaintiff  having  taken  passage  on  defendant's  steamboat,  deposited  his  va- 
lise, containing  wearing  apparel,  in  a  stateroom,  the  key  of  which  was 
handed  to  him  at  the  time  of  paying  his  passage.  During  his  temporary  ab- 
sence from  the  stateroom,  the  door  of  which  was  locked,  the  valise  was  sto- 
len,— Held,  that  the  defendants  were  liable. 

The  liability  of  a  common  carrier  is  like  that  of  an  innkeeper,  and  it  is  no  ex- 
cuse for  the  latter  to  say  that  he  delivered  the  guest  the  key  of  the  cham- 
ber in  which  he  lodged. 

A  mere  supervision  of  one's  baggage,  or  the  means  of  entering  the  place  of  its 
deposit,  is  not  sufficient  to  discharge  the  carrier.  There  must  either  exist 
the  animo  custodiendi  on  the  part  of  the  traveller  to  the  exclusion  of  the  car- 
rier, or  he  must  be  guilty  of  such  negligence  as  discharges  the  latter  from 
his  general  obligation.  [Cohen  v.  Frost,  2  Duer,  341,  criticised.] 


152  COURT  OF  COMMON  PLEAS. 

Mudgett  v.  The  Bay  State  Steamboat  Company. 

APPEAL  by  the  defendants  from  a  judgment  of  the  First 
District  Court. 

The  plaintiff  sued  to  recover  the  value  of  a  valise,  which  he, 
as  a  passenger  upon  the  defendants'  steamboat,  running  from 
New  York  to  Fall  River,  had  deposited  in  his  stateroom.  The 
plaintiff  testified  that  he  took  stateroom  No.  9,  and  paid  for  the 
same  ;  that  he  had  a  valise  with  him,  containing  some  clothing 
and  other  articles,  which  he  took  into  the  stateroom  with  him. 
A  key  was  furnished  him  by  the  clerk  of  the  boat.  He  locked 
his  stateroom  and  went  down  to  the  saloon ;  in  his  absence 
the  valise  was  taken  from  the  stateroom. 

The  defence  was,  "that  the  luggage  was  not  delivered  by  the 
plaintiff  to  the  defendants,  who  had  a  regular  baggage  master 
to  receive  and  care  for  the  luggage ;  and  consequently  they 
were  not  liable. 

The  justice  gave  judgment  for  the  plaintiff,  and  the  defen- 
dants appealed  to  this  court. 

D.  D.  Lord,  for  appellants. 

I.  To  constitute  delivery,  the  luggage  must  be  given  into 
carrier's  charge,  so  that  he  has  notice  of  intention  to  hold  him 
responsible,  and  he  may  have  possession,  so  as  to  enable  him 
to   fulfill   his   duties.      Buck-master  v.  Levy,   3    Camp.    404  • 
Selway  v.  Holloway,  1  Ld.  Raym.  46  ;  Tower  v.  U.  &  8.  R.  R. 
Co.  7  Hill,  47.     Where  a  guest  leaves  luggage  in  his  room  in 
an  inn,  and  takes  the  key  for  the  purpose  of  taking  care  of  it  him- 
self, the  innkeeper  is  not  liable.    Burgess  v.  Clements,  4  M.  &  S. 
306.     So  where  plaintiff,  instead  of  giving  parcel  to  the  driver, 
put  it  into  his  own  bag.     Mills  v.   Cattle,  6  Bing.  743.     So 
where  owner  was  to  go  with  cart.    Brind  v.  Pale,  8  Can-.  &  P. 
207.     In  the  last  two  cases,  goods  were  in  the  carrier's  pos- 
session ;  but  there  was  no  recovery,  because  the  carriers  were 
not  trusted.     So  where  passenger  put  money  into  his  trunk  in- 
stead of  giving  it  to  captain.     Orange  Co.  Bank  v.  Brown, 
9  Wend.  85. 

II.  No  question  of  delivery  is  raised  by  the  case.     The 
baggage   was  put  on  the   boat,  from  which   it   was  taken. 
Robinson  v.  Dunmore  (2  Bos.  &  P.  416),  is  not  in  point  for 


XEW  YORK— MAY,    1861.  153 

Mudgett  v.  The  Bay  State  Steamboat  Company. 

plaintiff.  That  was  not  a  question  of  common  carrier,  but  of 
a  cartman  who  especially  engaged  to  carry  goods,  and,  on 
objection  to  insufficiency  of  his  tarpaulin,  warranted  that 
goods  should  go  safely.  Plaintiff  sent  his  servant  with  goods, 
because  defendant  was  a  stranger,  and  the  servant  paid  for 
watching  them  one  night.  The  goods  being  stolen,  the  carrier 
was  held  liable  on  special  agreement  and  warranty. 

III.  But  the  question  at  bar  is,  whether  there  was  or  was 
not  delivery  to  carrier.  Oayle's  case  (S  Co.  33),  is  not  in  point, 
because  baggage  in  a  room,  at  an  inn,  is  delivered  to  the  inn- 
keeper, but  not  so  plaintiff's  baggage. 

Benj.  F.  Mudgett  (Northrop  &  Mudgett),  for  respondents. 

BY  THE  COURT. — BEADY,  J. — The  defendants  in  this  case 
claim  exemption  from  liability,  on  the  ground  that  the  plain- 
tiffs valise  was  never  placed  in  their  custody.  The  liability 
of  a  carrier  is  like  that  of  an  inkeeper.  Jlbllister  v.  Nolan, 
19  Wend.  236  ;  Cohen  v.  Frost,  2  Duer,  341  ;  and  it  was  de- 
clared in  Cable's  Case,  8  Co.  33,  that  it  is  no  excuse  for  the  inn- 
keeper to  say  that  he  delivered  the  guest  the  key  of  his  cham- 
ber in  which  he  lodged,  and  that  he  left  the  door  open,  but  he 
ought  to  keep  the  goods  and  chattels  of  his  guest  there  in 
safety.  This  doctrine  has  frequently  been  recognized  and  ap- 
proved, (Burgess  v.  Clements,  4  M.  &  Sel.  310 ;  HolUster  v. 
Nolan,  supra})  and  cannot  be  questioned,  as  resting  on  ac- 
knowledged just  and  reasonable  duties  and  obligations.  A 
distinction  is  admitted  to  exist  where  the  traveller  assumes 
the  charge  of  his  goods  animo  custodiendi,  and  the  jury  on  the 
facts  disclosed,  find  such'  intention  to  have  existed.  Burgess 
v.  Clements,  supra;  Tower  v.  Utica  &  Schen.  /£.  R.  Co. 
7  Hill,  47.  The  innkeeper  would  then  be  excused.  The  mere 
act,  however,  of  taking  the  key  of  the  room  in  which  the  guest 
lodged,  his  goods  having  been  placed  therein,  would  not  dis- 
charge the  innkeeper. 

The  only  case  which  seems  to  be  in  conflict  with  the  rule 
here  suggested  is  Cohen  v.  Frost,  supra.  In  that  case,  the 
plaintiff,  who  waa  a  passenger  on  a  sea  voyage,  took  his  trunk 
into  the  steerage  and  tied  it  with  ropes  to  his  berth.  During  a 
violent  storm  the  ropes  were  cut,  and  the  trunk  stolen.  The 


154  COURT  OF  COMMON  PLEAS. 

Mudgett  v.  The  Bay  State  Steamboat  Company. 

plaintiff  had  a  verdict,  but  the  general  term  set  it  aside,  on  the 
ground  that  the  trunk  had  never  been  delivered  to  the  defen- 
dants, the  defendants'  possession  being  exclusive.  The  Court 
say,  in  delivering  the  opinion,  that  the  case  is  not  to  be  distin- 
guished from  that  of  a  guest  at  an  inn,  who,  when  he  takes  his 
luggage  to  his  own  chamber,  of  which  he  keeps  the  key,  dis- 
charges the  innkeeper,  and  this  is  declared  to  be  the  law,  on 
the  authority  of  Burgess  v.  Clements.  The  learned  judge  who 
delivered  the  opinion  in  Cohen  v.  Frost^  must  have  confounded 
Burgess  v.  Clements  with  some  other  case,  because  the  King's 
Bench  did  not  declare  any  such  rule.  The  plaintiff  was 
defeated  because  his  goods  were  not  received  causa,  hospi- 
tandi.  He  had  asked  for,  and  obtained  a  room  in  which  to 
show  his  merchandise  for  sale,  not  as  a  guest,  but  as  a  vendor, 
and  his  property  was,  under  the  circumstances,  held  not  to 
have  been  within  the  rule  which  required  the  innkeeper  to 
protect  it.  The  opinion,  therefore,  in-  Cohen  v.  Fro*t,  is  not 
sustained  by  the  authority  on  which  it  is  based,  so  far  as  it  re- 
lates to  the  legal  effect  of  the  innkeeper's  giving  the  key  to  his 
guest :  and  the  general  doctrine  which  seems  to  be  declared 
by  it,  that  a  traveller  on  a  sea  voyage  must  place  his  luggage 
in  the  special  charge  of  the  officers  of  the  ship,  is  disclaimed, 
in  effect,  in  Van  Horn  ^.  Kermit,  4  E.  1).  Smith,  453  ;  the 
reasons  assigned  why  a  contrary  rule  should  prevail  are  well 
settled. 

So  far  as  the  adjudications  which  bear  upon  this  question 
have  been  discovered,  they  sustain  the  rule  that  a  mere  super- 
vision of  one's  baggage,  or  the  means  of  entering  the  place  of 
its  deposit,  is  not  sufficient  to  discharge  the  carrier.  .  There 
must  either  exist,  the  animo  custodicndi  on  the  part  of  the  tra- 
veller, to  the  exclusion  of  the  carrier,  or  he  must  be  guilty  of 
such  negligence  as  discharges  the  latter  from  his  general  obli- 
gation. Robinson  v.  Dunsmore,  2  B.  &  P.  416.  Burgess  v. 
Clements,  supra  •  Tower  v.  Utica  &  Schen.  ft.  R.  Co.  supra  ; 
East  India  Com.  v.  Pullen,  1  Strange  Rep.  694. 

It  was  not  pretended  in  this  case  that  the  plaintiff  was 
guilty  of  negligence,  and  so  far  as  it  may  be  necessary  to  con- 
sider the  question  whether  the  plaintiff  retained  the  custody 
of  his  valise  or  not,  it  is  only  necessary  to  say  that  the  finding 
of  the  justice  is  against  the  defendants  upon  that  issue.  I  do 


NEW  YOEK— MAY,   1861,.  155 

Bishop  v.  Sniffen. 

not  understand  upon  what  process  of  reasoning  it  can  be  main- 
tained that  giving  the  key  of  a  room  on  board  of  a  vessel  to  a 
traveller,  in  which  he  is  permitted  to  deposit  his  baggage,  is 
not  in  fact,  an  assumption  of  the  possession  of  all  that  is  there- 
in placed.  The  whole  vessel  is  in  the  possession,  and  subject 
to  the  control  of  the  owners.  The  custody  of  the  vessel,  and 
the  general  government  of  the  room  given  the  traveller,  con- 
tinues with  them.  The  use  of  it  is  a  convenience  for  which 
the  traveller  pays,  and  if  its  employment  absolves  the  carrier 
from  vigilance,  the  security  of  property  succumbs  to  the  ease 
or  pleasure  of  the  journey.  Such  cannot  be  the  law.  The  de- 
fendants can  protect  themselves  if  they  wish,  by  notifying 
their  patrons  that  no  goods  can  be  placed  in  the  stateroom 
hired,  except  at  the  risk  of  the  owner,  and  thus  advise  them 
of  the  consequences  of  the  act.  But  as  long  as  they  permit  a 
traveller  thus  to  deposit  his  baggage  without  notice,  the  mere 
circumstance  of  his  taking  a  key  will  not  be  considered  suffi- 
cient to  relieve  them  from  their  duty  to  protect  him  against 
theft. 
The  judgment  should  be  affirmed. 


GEORGE  W.    BISHOP  v.   ELISHA  SNIFFEN. 

Interest  on  a  promissory  note,  payable  on  demand,  is  allowed  from  the  time 

of  the  demand,  and  not  from  the  date  of  the  note. 

• 

Where  it  does  not  appear  that  at  the  time  of  the  demand  of  payment  of  a  lost 
promissory  note,  negotiable  in  form,  the  same  was  not  indorsed,— /MJ, 
that  the  demand,  unaccompanied  by  an  offer  of  a  bond  of  indemnity,  did  not 
place  the  maker  in  default ;  and  interest  ought  not  to  be  allowed  from  the 
time  of  such  demand. 

That  a  demand  of  payment  of  a  lost  promissory  note  will  be  held  sufficient 
without  an  offer  of  a  bond  of  indemnity,  where  it  appears  either  that  the  note 
was  not  negotiable,  or  being  negotiable,  had  not,  in  fact,  been  indorsed. 

APPEAL  by  the  defendant  from  a  judgment  of  the  Sixth  Dis- 
trict Court. 


156  COURT  OF  COMMON   PLEAS. 

Bishop  v.  Sniffen. 

The  action  was  brought  upon  a  lost  promissory  note,  alleged 
to.have  been  made  in  San  Francisco,  May  19,  1855,  payable  to 
plaintiff'or  order  on  demand,  with  interest  at  ten  per  cent,  per 
annum. 

The  justice  before  whom  the  cause  was  tried,  rendered  judg- 
ment for  the  plaintiff  for  the  principal  of  the  note,  and  interest 
from  its  date  at  the  rate  of  ten  per  cent. 

The  defendant  appealed  to  this  Court,  on  the  ground,  among 
others,  that  judgment  was  rendered  for  interest  from  the  date 
of  the  note,  and  anterior  to  the  time  of  the  demand. 

D.  F.  Walden  (Tomlinson,  Walden  &  Brigham},  for  appel- 
lants. 

I.  Interest  should  have  been  allowed  only  from  the  time  the 
suit  was   commenced.     A  note   payable   on   demand  carries 
interest  only  from  the  time  a  demand  is  made  by  suit  or  other- 
wise.   Renss.  Glass  Factory  v.  Reid,  5  Cow.  587 ;  11  N.  Y. 
406. 

II.  There  was  no  demand  before  suit  brought.     Payment 
cannot  be  demanded  of  a  negotiable  note  without  delivering  it 
up.     Story  on  Notes,  §§  107,  111,  445. 

III.  Where  a  note  is  lost,  demand  cannot  be  made  of  it 
without  a  tender  of  indemnity  at  the  time  of  the  demand.    See 
Smith  v.  Rockwell,  2  Hill,  482. 

A.  H.  Hitchcock,  for  the  respondent,  contended  that  the 
"English  rule  that  interest  only  runs  from  demand  on  a  note 
payable  on  demand,  had  never  been  recognized  by  the  Courts 
of  this  State  ;  and  cited  Taylor  v.  Van  Loan,  15  Wend.  308  ; 
Reid  v.  Renss.  Glass  Co.,  3  Cow.  425 ;  Purdy  v.  Phillips,  11 
N.  Y.  406. 

BY  THE  COURT.— BRADY,  J. — The  question  presented  in  this 
case,  namely,  whether  in  an  action  on  a  note  payable  on  de- 
mand, interest  is  to  be  allowed  from  the  date  of  the  note,  or 
the  time  of  demand,  has  not  been  settled  by  any  express  adju- 
dication in  this  state,  although  a  rule  which  is  controlling  has 
been  long  recognized. 

In  Campbells.  Mesier(Q  Johns  .Ch.  Rep.  21),  the  chancellor 
said  "  it  is  the  settled  rule  in  the  law  of  this  State,  that  interest 


NEW   YORK— MAY,   1801.  157 

,  Bishop  v.  Sniffeu- 

is  to  be  paid  for  money  received  or  advanced  for  the  use  of  an- 
other, after  a  default  in  payment,"  and  SPENCER,  Senator,  in 
Renssellaer  Glass  Factory  v.  Reid  (5  Cowen,  611),  adopts  the 
rule  thus  stated,  which  he  says  is  illustrated  by  the  familiar  case 
of  a  note  payable  on  demand,  where  interest  is  never  allowed 
but  from  the  time  of  demand,  made  by  suit  or  otherwise.  The 
same  rule  is  recognized  in  Purdy  v.  Phillips,  1  Kern  an,  406 ; 
also  in  Edwards  on  Bills,  712  ;  and  in  Smith's  Mercantile  Law, 
p.  526.  See  also,  Stowils  v.  Bank  of  Troy,  21  Wend.  186,and 
Day  v.  Bett,  6  Johns.  24. 

Interest  is  given  by  the  courts  as  pecuniary  damages  upon  a 
contract  to  pay  money  and  a  failure  to  pay  at  the  time  desig- 
nated (LoKD  MANSFIELD,  in  Robinson  v.  Bland,  2  Bnrr,  1086) ; 
and  when  a  sum  is  payable  on  demand,  the  damages  do  not 
arise  until  default  is  made.  Predicating  the  right  of  the  plain- 
tiff to  receive  interest  on  this  principal,  it  is  clear  that  the  judg- 
ment rendered  below  is  wrong  because  there  is  no  proof  that 
the  note  was  demanded  on  the  day  of  its  date. 

In  reference  to  the  demand  proved,  and  the  questions 
arising  from  the  proof  of  such  demand,  this  case  illustrates  the 
troubles  which  are  occasioned  by  the  mode  of  trying  cases  in 
the  inferior  courts.  If  the  plaintiff  had  been  asked  whether 
at  the  time  the  demand  was  made  the  note  had  been  endorsed, 
his  answer  might  have  secured  to  him  the  benefit  of  that  de- 
mand, as  to  interest,  but  inasmuch  as  the  case  does  not  disclose 
the  fact  whether  the  note  was  endorsed  or  not,  the  plaintiff 
was  not  entitled  to  interest  but  from  the  time  of  the  com- 
mencement of  this  action.  If  the  note  had  not  been  nego- 

o 

tiable,  or  being  negotiable,  had  not  in  fact  been  negotiated,  the 
plaintiff  would  be  entitled  to  recover  the  interest  from  the  time' 
of  the  demand  in  1858  (Pintard  v.  Tackington,  10  Johns.  104  ; 
Rowley  v.  Ball,  3  Cow.  303  ;  MoNair  v.  Gilbert,  3  Wend.  344  ; 
Blade  v.  Noland,  12  Wend.  174 ;  Smith  v.  Rockwell,  2  Hill, 
483);  because  in  that  case  no  indemnity  could  be  demanded  or 
required  at  the  time  of  the  demand,  as  no  right  of  action  would 
exist  against  the  defendant  in  the  hands  of  the  stranger  holding 
the  note.  The  plaintiff  failed,  however,  to  make  out  a  plain 
case.  He  did  not  show  that  at  the  time  of  the  demand  the 
note  had  not  been  endorsed,  nor  did  he  show  that  the  defen- 
dant, when  the  demand  was  made,  placed  his  refusal  upon 


158  COUR1    OF   COMMON    PLEAS. 

Ballard,  v.  Lockwood. 

some  other  ground  than  the  nonproduction  of  the  note  or  a 
right  of  indemnity.  The  note  being  negotiable  and  being  lost, 
the  defendant  was  not  bound  to  make  payment  of  it  upon  a 
mere  naked  demand,  and  therefore  made  no  default  in  Sept. 
1858.  Smith  v.  Rockwell,  supra,  and  cases  cited  ;  Des  Arts  v. 
Leggett,  5  Duer,  156. 

For  these  reasons  the  judgment  should  be  reduced  so  that 
interest  is  allowed  only  from  the  commencement  of  the  action, 
and  should  be  affirmed  for  the  balance,  without  costs  to  either 
party. 


LOOMIS   BALLAUD  and  others  v.  EZEKIEL  S.  LOOKWOOD,  im- 
pUaded,  &c. 

The  complaint  averred  a  fraudulent  agreement  between  the  defendants  L.  com- 
posing a  copartnership,  and  G.,  to  obtain  goods  on  G.'s  credit,  on  represen- 
tations made  by  L.  of  G.'s  solvency  and  good  standing ;  and  alleged  that  the 
representations  of  L.  to  the  plaintiffs,  and  the  purchase  made  of  the  plain- 
tiffs by  G.,  on  such  representations,  "  were  made  in  pursuance  of  such  fraudu- 
lent agreement,  and  were  a  device  and  contrivance"  between  L.  and  G.  to 
obtain  the  goods  of  the  plain  tiffs, — Held,  on  appeal  from  judgment  after 
verdict,  that  the  complaint  was  sufficient. 

1.  It  matters  not  what  the  claim  is  termed  in  ihe  complaint,  or  what 
word  is  employed  by  the  defendant  to  express  the  legal  effect  or  result  of 
the  acts  alleged.    It  is  enough  that  they  form  the  basis  of  a  demand. 

2.  Nor  is  it  necessary  to  aver  that  the  representations  on  which  plaintiffs 
parted  with  their  goods  were  false.    It  is  sufficient  to  allege  that  they  were 
made  by  the  defendants  well  knowing  the  truth  to  be  the  converse. 

A.  complaint  is  "  duly  verified  "  within  §  4  of  the  act  of  1857,  in  relation  to 
the  Marine  Court,  if  made  by  one  of  several  plaintiffs  united  in  interest.  It 
is  not  necessary  to  state  that  the  person  making  it  is  acquainted  with  the 
facts. 

In  an  action  to  recover  damages  sustained  by  reason  of  the  fraudulent  repre- 
sentations of  the  defendant  concerning  the  credit  and  good  standing  of 
another,  doing  business  under  the  designation  of  agent,  it  is  wholly  imma- 
terial whether  or  not  it  is  the  understanding  in  mercantile  circles  that  a  per- 
son doing  business  under  such  designation  is  not  responsible. 


NEW   YORK— AUGUST,   1861.  159 

Ballard  v.  Lockwood. 

And  in  such  an  action,  it  is  immaterial  whether  the  plaintiff  received  any 
information  as  to  the  standing  of  the  party  from  mercantile  agencies,  or 
whether  the  plaintiff  was  a  subscriber  to  such  agencies ;  the  question  to  be 
tried  being  whether  the  defendant  made  the  statements  untruly  and  from 

.    bad  motives. 

Although  a  motion  for  nonsuit  might  have  been  properly  granted  on  plain- 
tiff's resting  his  case,  on  the  ground  that  the  evidence  was  too  slight  to 
sustain  the  claim,  yet,  where  the  case  was  subsequently  strengthened  by 
the  defendant's  witnesses,  the  exception  taken  oh  denying  that  motion  is 
not  available  on  appeal. 

It  is  a  matter  of  discretion  for  the  judge  to  exclude  a  question  on  the  ground 
that  it  has  already  been  answered  in  effect ;  and  as  such,  the  exclusion  is 
not  reviewable  on  appeal. 

Questions  to  a  witness  whether  certain  representations  alleged  in  the  com- 
plaint were  made  "  with  intent  to  deceive  or  mislead ;"  and  whether,  in  his 
representations,  "  he  spoke  and  acted  in  good  faith,  and  in  the  belief  that 
what  he  said  was  true,"— Held,  properly  excluded.  [The  case  distinguished 
from  Seymour  v.  Wilson,  14  N.  Y.  567.] 

Judgment  mny  be  rendered  against  one  defendant  alone  in  the  Marine  Court 
in  cases  embraced  by  section  136  of  the  Code,  although  that  section  does 
not  apply  to  the  Marine  Court. 

APPEAL  by  the  defendant  from  a  judgment  of  the  Marine 
Court,  at  General  Term. 

The  plaintiff's  cause  of  action  is  stated  in  the  following  para- 
graph of  his  complaint : 

"  The  plaintiffs  are  informed,  and  believe,  and  aver  the  fact 
to  be,  that  at  or  'about  the  time  of  the  sale  of  said  goods  by  the 
plaintiffs  to  the  said  Thomas  Gill,  and  the  making  of  repre- 
sentations hereinbefore  referred  to  by  the  said  Lockwood 
Brothers,  the  said  Gill  was  indebted  to  the  said  Lockwood 
Brothers  in  the  amount  of  thirteen  thousand  dollars,  or  there- 
abouts,' and  was  well  known  by  the  said  Lockwood  Brothers  to 
be  insolvent,  and  unable  to  pay  his  debts,  and  with  a  view  to 
obtain  payment  of  their  own  debts,  it  was  agreed  between  the 
said  Gill  and  the  said  Lockwood  Brothers,  that  the  said  Gill 
should  endeavor  to  purchase  goods  from  various* merchants  in 
the  city,  and  should  refer  to  the  said  Lockwood  Brothers  as  to 
his  responsibility,  and  that  the  said  Lockwood  Brothers  should 
represent  him  to  be  solvent  and  in  good  credit,  and  that  such 


160  COURT  OF  COMMON  PLEAS. 

Ballard  v.  Lockwood. 

goods,  when  purchased,  should  be  transferred  to  the  Lockwood 
Brothers  in  payment  of  their  debts,  or  sold  at  auction  by  them, 
and  the  proceeds  applied  to  the  payment  of  their  debt ;  and 
the  plaintiffs  believe,  aver,  and  charge  the  fact  to  be,  that  the 
application  of  said  Gill  to  the  plaintiffs  to  purchase  said  goods, 
the  reference  to  the  said  Lockwood  Brothers,  and  the  state- 
ments made  by  the  said  Lockwood  Brothers,  were  all  made  in 
pursuance  of  such  fraudulent  agreement,  and  were  a  device 
and  contrivance  between  the  said  Lockwood  Brothers  arid  the 
said  Gill  to  obtain  the  goods  of  the  plaintiffs,  to  be  applied  to 
the  payment  of  the  debt  of  the  said  Lockwood  Brothers." 

The  complaint  was  verified  as  follows: 

"  Charles  E.Williams  being  duly  sworn,  says  :  That  he  is  one 
of  the  plaintiffs  in  this  action  ;  that  the  foregoing  complaint  is 
true  of  his  own  knowledge,  except  as  to  the  matters  therein 
stated  on  information  and  belief,  and  as  to  thosfc  matters  he  be- 
lieves it  to  be  true." 

The  defendant  Gill  was  not  served.  E.  S.  Lockwood  and 
Alexander  Lockwood  put  in  special  defences. 

On  the  trial,  and  before  the  proofs  were  gone  into,  the  defen- 
dants' counsel  moved  that  the  complaint  be  dismissed,  on  the 
ground  that  the  action  was  purely  a  personal  action,  and  could 
not  be  brought  against  a  partnership  firm  as  such,  and  that  no 
representations  were  charged  by  the  complaint  upon  any  indi- 
vidual, but  only  upon  the  firm  of  Lockwood  Brothers.  The 
Court  denied  the  motion. 

The  exceptions  taken  on  the  trial  are  stated  in  the  opinion  of 
theCourt.  The  Court  belowrendered  verdict  for  plaintiffs  against 
.the  defendant  E.  S.  Lockwood,  and  in  favor  of  the  defendant 
A.  Lockwood  ;  upon  which  judgment  was  duly  entered  in  favor 
of  plaintiff  against  the  defendant  E.  S.  Lockwood  ;  and  defen- 
dant E.  S.  Lockwood  appealed  to  this  Court. 

E.  R.  Bogardus,  for  appellant. 

I.  The -act  of  1857  is  imperative,  that  the'  complaint  duly 
verified  shall  *be  served  with  the  summons;  this  verification 
must  be  in  conformity  with  the  Code,  which  is  not  complied 
with  in  this  case,  as  the  verification  does  not  state  that  the  per- 
son making  it  is  acquainted  with  the  facts.  (Code,  §  157).  The 


NEW  YORK— AUGUST,    1861.  161 


Ballard  v.  Lockwood. 


verification,  if  by  one  of  several  plaintiffs  united  in  interest, 
'must  be  by  one  of  the  parties  acquainted  with  the  facts.  Bos- 
ton Locomotive  Works  v.  Wright.  15  How.  256. 

II.  The  complaint  should  have  been  dismissed  on  motion. 
(1.)  An  action  of  deceit  or  conspiracy  cannot  be  maintained 
against  a  partnership  firm  as  such,  nor  can  false  representa- 
tions be  properly  alleged  to  be  made  by  a  firm,  but  must  be 
charged  against  individuals  only.     But  an  action  of  deceit  is 
strictly  a  personal  action,  and  neither  survives  nor  is  assign- 
able.    Zabriskie  v.   Smith,   13  N.-Y.  322,     (2.)    The   com- 
plaint does  not  contain  a  cause  of  action,  for  it  does  not  allege 
that  any  of  the  representations  charged  to  have  been  made 
were  false,  nor  any  scienter  /  but  these  are  the  gist  of  the 
action.     The  omission  is  fatal  even  after  verdict.     Zabriskie  v. 
Smith,  13  N.  Y.  322  ;   Young  v.  Covell,  8  Johns.  19 ;  Pasley 
v.  Freeman,  3  Term,  51 ;  2  Smith's  L.  Cases,  55 ;  2  Chit.  PL 
702,  703  and  notes. 

III.  The  evidence  excluded  tending  to  show  the  plaintiff's 
knowledge  of  Gill's  circumstances,  should  have  been  admitted. 
McAllister  v.  Sexton,  4  E.  D.  Smith,  41 ;  Star  v.  Bennet,  5  Hill, 
303. 

IV.  The  verdict  determined  the  issue  in  the  defendant's 
favor,  and  judgment  thereon  should  have  been  entered  in  favor 
of  both  defendants.     No  conspiracy,  no  firm  liability,  no  firm 
representations,  no  conversion  by  the  firm,  are  found  by  the 
jury.    To  sustain  the  judgment,  an  entirely  different  cause  of 
action  must  be  inserted  in  the  complaint,  based  on  certain 
definite  representations  alleged  and  proved  to  be  false.     This 
would  be  unjust  to  allow.     Waldheim  v.  Sickell,  1  Hilton,  45 ; 
Howe  v.  Wilson^  1  Den.  181. 

Stillwell  &  Swain,  for  respondents,  contended  that  the  com 
plaint  was  duly  verified,  and  cited  Southworth  v.  Curtis,  6 
How.  Pr.  271 ;  Harnes  v.  Tripp,  4  Abbott's  Pr.  232  ;  also  that 
if  the  objection  of  a  defect  of  parties  were  valid,  it  could  only 
be  taken  by  demurrer  or  answer  (Code,  §§  144,  147,  148  ;  and 
Zabriskie  v.  Smith,  3  Kern.  322) ;  and  that  it  was  not  law  that 
false  representations  cannot  be  properly  alleged  to  be  made  by 


162  COURT    OF  COMMON    PLEAS. 

Ballard  v.  Lockwood. 

a  firm.     Pattan  v.  Gurney,  17  Mass.  182 ;  Afedbury  v.  Wat- 
son, 6  Metcalf,  247,  257  ;  Stiles  v.  White,  11  id.  356. 

BY  THE  COURT. — BRADY,  J.—- This  action  was  predicated  of 
the  charge  that  the  defendants  Lockwood,  in  order  to  obtain 
payment  of  the  debt  due  to  them  by  Gill,  made  an  arrange- 
ment with  him,  by  which  it  was  understood  and  agreed  that 
he  should  endeavor  to  purchase  goods  from  various  merchants 
in  the  city  of  New  York,  and  should  refer  the  latter  to  them 
as  to  his  responsibility,  and  that  they  should  represent  him  to 
be  solvent  and  in  good  credit,  and  that  the  goods,  when  pur- 
chased, should  be  transferred  to  them,  in  payment  of  their 
debt,  or  sold  at  auction  by  them,  and  the  proceeds  applied  to 
soch  payment.  And  the  plaintiffs  maintained  the  truth,  to  be 
that  representations  as  to  the  solvency  of  Gill  were  made  to 
plaintiffs  by  the  defendants  Lockwood,  pursuant  to  that  de- 
vice, and  that  goods  were  obtained  from  the  plaintiffs  by  Gill, 
by  virtue  of  such  representations.  And  further,  that  the  de- 
fendants Lockwood,  although  they  stated  the  fact  to  be  other- 
wise, knew  well  that  Gill  wa,s  insolvent  and  unable  to  pay  his 
debts.  Assuming  the  facts  here  stated  to  have  existed,  and 
the  charge  also  stated  to  have  been  truly  made,  there  can  be 
little  doubt  of  the  liability  of  the  defendants  Lockwood  for  the 
amount  of  property  obtained  through  their  instrumentality. 

It  matters  not  what  the  claim  was  termed  in  the  complaint, 
or  what  word  was  employed  by  the  plaintiff  to  express  the 
legal  effect  or  result  of  the  acts  alleged.  It  is  enough  that 
they  formed  the  basis  of  a  demand.  Nor  does  it  affect  the  in- 
tegrity of  the  cause  of  action  stated,  that  the  representations 
made  by  defendants  Lockwood,  are  not  averred  to  have  been 
false.  They  are  alleged  to  have  been  made  by  them  they 
well  knowing  the  truth  to  be  the  converse  of  what  was  said. 
The  complaint  was  sufficient  in  form  and  substance,  therefore. 

The  verification  was  also  sufficient.  It  was  made  by  one  of 
the  plaintiffs  and  was,  for  that  reason,  made  by  one  of  several 
parties  united  in  interest,  who  was  acquainted  with  the  facts. 
The  act  of  1857  (Laws,  1  vol.  599),  however,  only  provides  that 
the  complaint  shall  be  duly  verified,  and  sec.  157  of  the  code 
does  not  apply  to  the  Marine  Court.  The  form  of  verification 
is  not  prescribed  by  act  of  1857. 


NEW   YOKE— AUGUST,   1861.  163 

Ballard  v.  Lockwood. 

.No  exception  appears  to  have  been  taken  to  the  charge,  and 
the  issues  must  be  presumed  to  have  been  properly  presented 
to  the  jury  for  their  consideration,  and,  unless  some  of  the  ex- 
ceptions taken  during  the  trial  require.it  as  matter  of  right, 
the  verdict  cannot  be  •disturbed. 

It  may  be  proper  to  remark  here,  that  there  is  evidence  of  a 
combination  in  the  case,  and  although  we  might  be  disposed 
to  regard  it  as  slight,  it  was,  nevertheless,  sufficient  to  sustain 
the  finding.  The  proper  tribunal  has  so  declared,  and  we  are 
concluded  by  such  avowal.  The  first  exceptions  to  which  our 
attention  has  been  called,  and  the  questions  which  gave  rise  to 
them,  are  irrelevant.  It  was  wholly  immaterial  what  was  the 
understanding  in  mercantile  circles  to  be  drawn  from  a  per- 
son's doing  business  under  the  designation  of  an  agent,  or 
whether  the  plaintiffs  received  any  information  from  mercan- 
tile agencies,  or  whether  the  plaintiffs  were  subscribers  to  such 
agencies.  The  question  to  be  tried  was  whether  the  defen- 
dants Lockwood  had  made  statements  untruly  and  from  bad 
motives.  The  plaintiffs  were  not  on  trial  on  any  question  of 
intent  or  negligence,  and  if  they  chose  to  rely  on  the  defen- 
dants' statements  they  had  the  right  to  do  so.  The  question  at- 
fol.  45  had  some  bearing  on  the  fact,  whether  the  goods  were 
not  obtained  from  the  plaintiffs  to  be  sold  at  auction  to  raise 
money  on,  but  if  it  had  not,  it  is  quite  clear  on  the  whole  case, 
that  it  could  not  have  prejudiced  the  defendants. 

The  goods  purchased  from  the  plaintiffs  were,  in  fact, 
exposed  for  sale  at  the  defendants',  Lockwoods',  auction  rooms, 
on  the  day  after  the  sale  of  them  to  Gill.  They  were  straw 
goods,  and  the  defendants  were  to  have  straw  goods  to  secure 
them.  The  motion  for  nonsuit  might,  I  think,  have  been  pro- 
perly granted,  the  evidence  having  been  very  slight  when  the 
defendants  rested  to  sustain  so  grave  a  charge  as  that  made  by 
them,  but  the  case  was  strengthened  by  defendant  E.  S.  Lock- 
wood's  examination,  and  the  exception  taken  on  denying  that 
motion  cannot  avail  the  defendants  now.  The  question  at  fol. 
62,  as  to  Mr.  Lockwood's  confidence  and  belief  in  Gill's  respon- 
sibility, was  properly  rejected,  because  he  had  already  stated 
that  up  to  the  day  before  Gill  stopped,  his  confidence  in  him 
had  not  been  impaired,  and  there  was  no  necessity  for  multi- 
plying his  statements  to  the  same  effect.  The  exclusion  of  a 


104:  COURT  OF  COMMON  PLEAS. 

• 

Ballard  v.  Lockwood. 

question  under  such  circumstances,  must  be  a  matter  of  dis- 
cretion, and  as  such,  not  re  viewable.  Were  there  no  other  ob- 
jection to  the  question  asked,  this  would  be  sufficient  to  justify 
its  exclusion. 

This  inquiry  having  been  thus  disposed  of,  the  defendants' 
counsel  asked  Mr.  Lockwood  to  state  whether  or  not,  in  the 
conversation  he  had  with  Mr.  Williams  or  others,  in  regard  to 
Gill's  affairs,  he  had  any  intent  to  deceive  or  mislead,  and  this 
being  excluded,  the  counsel  then  asked  Mr.  Lockwood  to  state 
whether  or  not,  in  the  conversation  with  Mr.  Williams,  he 
spoke  and  acted  in  good  faith,  and  in  the  belief  that  what  he 
said  was  true  and  correct,  and  this  was  also  excluded.  The 
objection  stated  to  both  inquiries  was,  that  the  witness  could 
not  testify  as  to  his  intent,  but  only  as  to  acts  and  facts,  from 
which  the  jury  were  to  infer  the  intent.  The  defendants'  coun- 
sel places  his  right  to  have  one  of  the  questions,  at  least, 
answered,  on  the  authority  of  Seymour  v.  Wilson,  14  N.  Y. 
567.  That  case  was  brought  to  set  aside  an  assignment 
which  was  alleged  to  have  been  made  with  the  intent  to  hin- 
der, delay,  and  defraud  creditors,  which  was  the  sole  issue  in 
•the  cause.  The  assignor,  on  cross-examination,  was  asked 
whether,  in  making  the  assignment  to  the  defendants,  he  in- 
tended to  defraud  Conrad  Cramer  or  any  of  his  other  creditors 
The  question  was  excluded,  and  the  Court  of  Appeals  held  the 
ruling  to  be  erroneous,  but,  as  I  understand  the  case,  upon  the 
ground  that  fraud  against  creditors  always  consisted  in  the  cor- 
rupt intent  of  the  parties  to  the  transaction,  and  upon  the  fur- 
ther ground  that  the  question  of  fraudulent  intent  was  declared 
by  the  statute  to  be  a  question  of  fact,  and  not  of  law.  There 
is  no  analogy  between  that  case  and  the  case  in  hand,  and  I 
think  it  may  be  said  with  propriety  that  the  privilege  accorded 
the  assignor  in  that  case  was  an  innovation  upon  the  rules  of 
evidence.  There  is  no  other  reported  case  to  be  found  in  this 
State  where  the  parties  to  an  alleged  fraudulent  combination 
have  been  permitted  to  state  the  intent  with  which  they  did 
the  act  complained  of,  and  the  decision  in  that  case  should  be 
confined  to  the  class  of  cases  in  which  it  originated,  until  the 
court  of  last  resort  shall  otherwise  adjudge.  I  think  the  ques- 
tions were,  therefore,  properly  excluded.  I  assume,  for  the 
purpose  of  disposing  of  the  exceptions  taken  upon  such  exclu- 


NEW  YOftK— AUGUST,   1861.  165 

Vincent  v.  Buhler. 

sion  that  the  questions  were  not  subject  to  the  criticism  of  be- 
ing objectionable,  as  calling  for  more  than  an  expression  of 
intent,  although  such  is  not  the  case,  and  I  do  so  because  the 
objections  made  did  not  embrace  such  a  criticism. 

There  can  be  no  doubt  of  the  right  of  the  plaintiffs  to 
recover  against  the  defendant  F.  S.  Lockwood  alone,  although 
section  136  of  the  Code  does  not  apply  to  actions  in  the 
Marine  Court.  This  action  is,  in  form  and  nature,  what  was 
known  as  ex  delicto,  in  which  one  defendant  might  be  acquitted 
and  a  verdict  taken  against  the  others  (1  Chitty's  PI.  [6  Am. 
ed.]  99,  and  cases  cited.) 

The  judgment  should  be  affirmed. 


EDWARD  VINCENT  v.  WILLIAM  BUHLER. 

A  lease  executed  by  a  married  woman,  containing  covenants  on  her  part  to 
pay  the  rent,  and  expressing  no  intention  to  charge  her  separate  estate 
therefor,  is  absolutely  void,  and  constitutes  no  bar  to  an  action  against  the 
husband  for  use  and  occupation. 

APPEAL  by  the  defendant  from  a  judgment  at  Trial  Term. 

The  plaintiff  sued  for  the  use  and  occupation  of  certain 
premises  in  the  City  of  New  Fork.  The  defendant  answered 
that  during  the  time  for  which  he  was  sued  to  recover  the  use 
and  occupation,  the  premises  were  occupied  by  one  Carolina 
Buhler,  under  a  written  lease  to  her  from  the  plaintiff.  It  was 
admitted  that  Carolina  Buhler  was  the  wife  of  the  defendant. 

The  Court  rendered  judgment  for  the  plaintiff,  and  gave  the 
following  reasons  therefor: 

'     HILTON,  J. — In  deciding  this  case,  I  have  regarded  the  lease 
to  the  defendant's  wife  as  absolutely  void.     It  was  made  upo^n 


166  COURT  OF  COMMON  PLEAS. 

Vincent  v.  Buhler. 

her  covenant  to  pay  rent,  and  as  she  was  incapable,  in  law,  of 
entering  into  such  a  contract,  the  demise  had  no  consideration 
to  support  it.  "Woodfall's  Landlord  and  Tenant,  137  ;  Darby  v. 
Callagan,  16  N.  Y.,  71. 

In  the  last  case,  the  Court  of  Appeals  held  the  demise  to 
plaintiff  (a  married  woman,)  valid,  because  it  was  not  made  upon 
her  covenant  to  pay  rent,  she  not  having  executed  the  lease. 

This  was  not  so  here ;  on  the  contrary,  defendant's  wife 
signed  the  lease  and  thus  entered  into  a  contract  which  could 
not  be  enforced  against  her. 

The  defendant  then  appealed  to  the  General  Term. 

John  Moody,  for  appellant. 

I.  The  action  for  use  and  occupation  will  not  lie  where 
there  is  an  outstanding  subsisting  lease,  unless  against  an  occu- 
pier who  went  in  under  a  new  and  distinct  agreement  with  the 
landlord.     Glover  v.  Wilson,  2  Barb.  264 ;  Smith  v.  Stewart, 
6  Johns.  46  ;  Bancroft  v.  Wardwdl,  13  Id.  489. 

II.  Carolina  Buhler  being  the  tenant  of  the  plaintiff,  in 
respect  to  said  premises  for  a  term,  the  defendant  occupied 
said  premises,  it  is  to  be  presumed,  by  permission  of  Carolina 
Buhler  ;  and  the  defendant's  relation,  as  regards  said  premises, 
and  in  relation  to  the  plaintiff  and  Carolina  Buhler,  was  that 
of  under-tenant,  and  the  lessor  cannot  recover  rent  from  the 
under-tenant  in  this  action.    Bancroft  v.  Wardwdl,  13  Johns. 
489  ;  McFarlan  v.  Watson,  3  K  Y.  286. 

III.  A  married  woman  is  not  incompetent  to  take  a  lease. 
(Taylor's  Landlord  and  Tenant,  §  105.     Darby  v.  Callaghan, 
16  K  Y.  71). 

McCunn,  Swartwout  &  Fine,  for  respondent. 

I.  The  lease  from  the  plaintiffs  to  Carolina  Buhler  was  ab- 
solutely void,  because  made  dependant  upon  her  covenant  to 
pay  rent.  The  statutes  of  1848  and  1849  have  not  enlarged 
the  capacity  of  married  women  to  make  contracts,  nor  in- 
creased their  liability.  They  could  make,  under  those  statutes, 
no  contracts  which  they  could  not  make  before.  Gheeseborough 
v.  Home,  5  Duer,  125  ;  Darby  v.  Gallahan,  16  N.  Y.  71 ; 
Coon  v.  Brook,  21  Barb.  546. 


NEW  YOEK— AUGUST,  1861.  167 


Vincent  v.  Buhler. 


II.  A  married  woman  cannot  bind  herself  personally  by 
any  executory  contract,  even  in  regard  to  her  separate  pro- 
perty, and  no  action  at  law  can  be  maintained  against  her  on 
such  contract.     Beard  v.  Webb,  2  Bos.  &  Pull.  93  ;  Marshall 
v.  Jtutton,  8  T.  R.  545  ;  Van  Der  Heyden  v.  Mallory,  1  K  Y. 
462  ;  Noyes  v.  Bidkeman,  16  N.  Y.  567. 

III.  There  being  no  evidence  of  any  intention  to  charge 
the  separate  estate  of  the  wife  (if  she  had  any,  which  is  not 
shown),  the  law  allows  an  action  to  be  maintained  against  the 
husband.     Arnold  v.  Ringgold,  16  How.  Pr.  158. 

BY  THE  COURT. — BEADY,  J. — The  lease  executed  by  Mrs. 
Buhler  contained  covenants  on  her  part  to  pay  the  rent,  and 
her  estate  was  dependant  upon  those  covenants.  They  could 
not  be  enforced  against  her,  and  the  contract  was  void  for  want 
of  mutuality  of  obligation.  A  married  woman  cannot  make 
a  contract  except  in  reference  to  her  separate  estate,  and  the 
intention  to  charge  the  separate  estate  must  be  expressed  in  the 
contract,  if  in  writing.  Yale  v.  Dederer,  22  1ST.  Y.  Rep.  450. 

In  this  case  there  is  no  proof  of  any  separate  estate  owned 
by  the  defendant's  wife.  A  married  woman  cannot  be  a 
lessee,  for  her  free  will  is  so  suspended  during  coverture  that 
she  may  plead  non  est  factum  to  an  action  on  any  covenant 
contained  in  the  case.  For  use  and*  occupation  her  baron  will 
be  liable  (Woodfall's  Land  and  Ten.  137).  She  may,  under  the 
acts  of  1848  and  1849,  take  a  lease  which  imposes  no  obliga- 
tion by  covenant  to  pay  rent,  thus  leaving  the  chattel  real  un- 
controlled by,  and  not  dependant  upon,  covenants.  Darby  v. 
Callaghan,  16  N.  Y.  Rep.  71.  And  under  the  provisions  of 
the  act  of  1860  (Session  Laws,  p.  157),  a  married  woman  may 
be  bound  by  her  contract  in  reference  to  her  sole  or  separate 
business,  the  husband  being  relieved  from  any  liability  upon 
such  obligations.  But  in  this  case,  the  occupancy  of  the  pre- 
.mises  by  the  defendant,  and  his  payment  of  the  rent  some- 
times, which  was  to  be  paid  by  the  covenants  in  the  lease, 
amount  to  recognition  or  ratification  of  the  contract  to  pay, 
and  at  all  events,  create  an  implied  obligation  to  pay  for  such 
use  and  occupation. 

Judgment  should  be  affirmed. 


168  COUKT  OF  COMMON  PLEAS. 


Goings  v.  Patten. 


CHARLES  GOINGS  v.  LUDLOW  PATTEN  and  ALEXANDER  S. 

CLARKE. 

The  defendant  having  pleaded  an  account  stated,  may  elect  to  rely,  upon  the 
trial,  upon  the  stating  of  the  account,  or  he  may  fall  back  upon  the  accounts, 
and  show  that  there  is  in  fact,  a  balance  due  him. 

It  is  not  inconsistent  with  the  defence  of  an  account  stated  for  the  defendants 
to  furnish  a  copy  of  the  account  upon  which  they  meant  to  rely,  in  the  event 
of  their  failure  to  prove  the  stating  of  an  account. 

But  the  defendant  having  refused  to  deliver  a  copy  of  the  account  within  the 
time  which  the  Code  allows  after  demand  made, — Held,  that  he  will  be 
deemed  to  have  elected  to  rely  upon  the  stating  of  the  account ;  and  on 
motion,  plaintiff  is  entitled  to  an  order  precluding  defendant  from  giving 
evidence  of  the  accounts  upon  the  trial. 

APPEAL  by  the  defendants  from  an  order  of  the  Court  at 
Special  Term,  granticg  a  motion  to  preclude  evidence  being 
given,  upon  the  trial,  of  an  account  set  up  in  tha  answer. 

The  Court  made  a  qualified  order  that  "  the  defendants  be 
precluded  from  giving  any  evidence  of  the  account,  and  the 
items  thereof  stated  and  mentioned  in  the  answer  of  the  defen- 
dants served  in  this  action,  except  so  far  as  may  be  necessary 
to  establish  the  single  defence  of  an  account  stated  and  settled 
between  the  parties,  it  being  alleged,  on  this  motion,  that  that 
is  the  only  defence  sought  to  be  interposed  in  this  action,  and 
set  up  in  the  defendant's  answer." 

J.  W.  Gilbert,  for  appellants. 

The  order  appealed  from  was  erroneous. 

The  Court  should   have   determined   whether  the   answer, 
alleged  an  account  within  §  358  of  the  Code,  or  not.     If  an 
account,  time  to  furnish   items    should   have  been  given  on 
terms.    If  not  an  account,  the  motion  should  have  been  denied 
entirely. 

J).  C.  Erown^  for  respondent. 


NEW    YORK— AUGUST,   1861.  169 

Goings  v.  Patten. 

I.  The  answer  of  the  defendant  alleges  an  account  against 
.  the  plaintiff,  within  the  meaning  of  §  158  of  the  Code  of  Pro- 
cedure.    The  motion  papers  showed  that  the  items,  or  particu- 
lars, of  the  account,  had  been  demanded  a  long  time  before, 
and   that  the    defendants'   attorney  refused   to  furnish   them. 
The  proper  way  to  proceed  was  by  way  of  motion,  before  the 
case  was   called  for  trial,  that  the   defendants   be  precluded 
from  giving  any  evidence  of  the  items  of  the  account.    Kellogg 
v.  Payne,  8  How.  Pr.  Rep.  329  ;  Code,  §  158. 

II.  The  attorney  for  the  defendants,  on  the  motion,  assumed 
the  ground  that  the  answer  did  not  allege  any  account  in  this 
case,  and  stated  that  the  defendants  relied  wholly  upon  the 
accounting ;  and  conceded,  upon  the  argument  of  motion,  that 
all  the  allegations  of  the  answer  by  way  of  account,  had  re- 
ference exclusively  to  the  accounting,  and  that  they  intended 
to  give  no  evidence  of  account  except  as  the  same  might  be 
given  incidentally  in  proving  the  accounting,  as  alleged  in  the 
answer.      The  counsel  should  now  be  held  to  his  own  interpre- 
tation of  the  pleading. 

III.  The  making  of  the  order  was  a  matter  cf  discretion  ex- 
clusively, that  cannot  be  reviewed.     The  §  158  of  the  Code, 
invests  the  Court  with  the  discretion  to  order  a  Bill  of  Parti- 
culars in  all  cases.     The  motion  in  this  case  appealed  to  that 
discretion,  and   the  judge  would   probably  have  granted  the 
motion,  and  ordered  a  Bill  of  Particulars  to  be  furnished,  if  the 
case  was  not  one  of  those  where  the  party  is  entitled  to  it  by 
merely  demanding  it,  if  the  attorney  had  not  conceded,  as  he 
did,  that  he  should  give  no  proof  of  any  items  of  the  account, 
except  by  way  of  establishing  the  accounting. 

BY  THE  COURT. — DALY,  F.  J. — The  appellant  insists  that  the 
judge  should  have  decided  whether  this  was  or  was  not  an 
averment  of  an  account  under  the  158th  section  of  the  Code  ; 
that  if  it  were  not,  the  plaintiff's  motion  should  have  been  de- 
nied, and  that  if  it  were,  that  the  defendants  should  have  been 
allowed  time  to  furnish  items  upon  terms.  I  do  not  see  that 
this  necessarily  follows.  A  party  may  fail  to  establish  the 
stating  of  an  account,  but  that  does  not  cut  him  off  from  any 
defence  he  may  have  upon  the  unsettled  account.  The  two 


170  COURT  OF  COMMON  PLEAS. 

Goings  v.  Patten. 

defences  are  not  inconsistent.  The  statement  of  an  account, 
says  an  old  case  (Drue  v.  Thorn,  Alleyn  R.),  "  doth  not  alter 
the  nature  of  the  debt ;  it  only  reduceth  it  to  a  certainty."  It 
admits  the  existence  of  a  prior  running  account ;  and  because 
a  party  relies  upon  the  defence,  that  it  was  mutually  adjusted, 
and  the  balance  ascertained  and  fixed,  and  fails*to  prove  it,  he 
is  not  thereby  precluded  from  falling  back  upon  the  accounts, 
and  showing  that  there  is,  in  fact,  a  claim  or  balance  due  to 
him.  He  would  undoubtedly  be  precluded  from  doing  so  if  his 
pleading  were  so  framed  as  to  show  that  he  relied  solely  upon 
the  defense  of  an  account  stated,  for  that  being  made  the  sole 
issue,  the  other  party  might  come  unprepared  to  try  any  other. 
But  a  party  might  always  join  with  an  account  stated  a  count 
for  the  original  debt,  and  if  he  failed  upon  the  one,  he  might 
recover  upon  the  other,  (1  Saunders  on  Pleading  and  Evi- 
dence, p.  42).  In  the  present  case,  the  Judge  appears  to  have 
regarded  the  defendants'  answer  as  entitling  them  to  prove  an 
account  stated,  which  raises  an  implied  promise  to  pay  the 
sum  found,  upon  the  mutual  adjustment,  to  be  due,  or,  failing 
in  that,  to  show  the  existence  of  a  mutual  account  and  indebt- 
edness to  them  arising  under  it.  It  would  have  been  entirely 
consistent  with  the  defence  of  an  account  stated,  for  the  defen- 
dants to  have  furnished  a  copy  of  the  account  upon  which  they 
meant  to  rely  in  the  event  of  their  failing  to  prove  the  stating 
of  an  account.  They  elected  not  to  do  so,  and  so  cut  them- 
selves off  from  the  right  of  giving  any  evidence  to  that  effect, 
and  limited  themselves  upon  the  trial  to  the  proof  of  an 
account  stated.  The  defendants  having  failed  to  deliver  a 
copy  of  the  account  within  the  time  which  the  Code  allows 
after  demand  made,  the  plaintiff  was  entitled  to  an  order  pre- 
cluding them  from  giving  evidence  of  it. 

It  does  not  appear  that  the  defendants  asked  for  liberty  to 
deliver  a  copy  of  their  account  then,  upon  terms  ;  but  if  they 
had,  and  the  Judge  had  refused,  it  was  a  matter  entirely  in  his 
discretion,  which  could  not  be  reviewed  upon  appeal.  The 
clause  in  the  order  that  it  should  not  be  construed  as  preclud- 
ing them  from  establishing  the  defense  of  an  account  stated, 
was  unobjectionable.  It  prevented  the  possibility  of  any  mis- 
construction upon  the  trial  as  to  the  meaning  of  the  order.  As 
the  defendants  had  precluded  themselves  from  setting  up  any 


NEW  YOKE— OCTOBER,   1861.  171 

Bryan  v.  Bowles. 

other  defence,  they  could  in  no  way  be  affected  injuriously 
by  it. 

The  order  at  Special  Term  should  be  affirmed. 


OLIVER  BRYAN  and  others,  v.  CHARLES  S.  P.  BOWLES. 

The  registry  of  a  vessel  at  the  Custom  House  is  prima  facie  evidence  to 
charge  a  person  as  owner  only  where  he  is  connected  with  its  procurement, 
or  in  some  way  adopts  it  as  his  act. 

Where  he  actually  procures  such  registry,  and  makes  affidavit  stating  that  he 
is  owner,  it  is  evidence  to  charge  him,  although  it  may  be  rebutted. 

Where  a  bill  of  sale,  absolute  on  its  face,  bore  date,  June  1856,  and  the  regis- 
try pursuant  thereto  was  made  December,  1857,  evidence  to  show  that  the 
bill  of  sale  was  by  way  of  mortgage,  and  did  not  take  effect  absolutely  till 
the  later  date,  and  that  the  vendee  did  not  enter  into  possession  until  such 
later  date,  is  proper,  and  should  be  admitted  to  rebut  the  presumption  of 
ownerahip,  in  an  action  to  charge  the  mortgagee  as  owner  of  the  ship. 

This  was  an  action  commenced  in  the  Marine  Court,  to 
charge  the  defendant  for  certain  supplies  furnished  to  the  brig 
Ida  Kaynes,  in  the  month  of  September,  1857.  The  defendant 
denied  that  in  the  month  of  September,  1857,  he  was  the 
owner  of  the  brig,  or  promised  to  pay  for  such  supplies.  On 
the  trial,  the  plaintiff  offered  in  evidence  the  registry  of  the 
brig,  dated  March  7th,  1857,  and  also  an  affidavit  of  ownership, 
made  December  21,  1857,  by  the  defendant.  Also  a  bill  of 
sale  absolute  on  its  face,  from  the  former  owners  of  the  brig, 
dated  June  27th,  1856.  They  also  proved  the  delivery  of  the 
articles.  Some  evidence  was  given  to  prove  a  promise  by  the 
defendant  to  pay  for  the  articles.  The  defendant  objected  to 
the  admission  of  the  papers  above  named  in  evidence,  but  the 
objections  were  overruled. 


172  COURT    OF  COMMON   PLEAS. 

Bryan  v.  Bowles. 

The  defendant  moved  for  a  non-suit,  which  was  denied,  and 
thereupon  offered  in  evidence  proof  that  the  defendant  was  not 
the  beneficial  owner  till  October,  1857,  and  a  defeasance  made 
by  defendant  to  the  former  owners,  also  proof  that  he  had  not 
eniployed  the  sailors  or  taken  possession  from  that  time. 

The  Court  excluded  the  defeasance  and  also  certain  evidence 
tending  to  show  that  the  former  owners  exercised  acts  of  own- 
ership over  the  ship. 

The  justice  found  that  the  defendant  was  the  owner,  and  as 
such,  liable.  On  appeal,  the  General  Term  sustained  the  judg- 
ment, and  the  defendant  appealed  to  this  Court. 

Osborn  E.  Bright,  for  appellants. 

I.  The  motion  for  a  nonsuit  should  have  been  granted. 
The  plaintiffs  had  failed  to  show  that  the  defendant  had  any 
beneficial  interest  in  the  vessel.     The  registry  raises  no  pre- 
sumption of  ownership,  nor  of  liability  for  supplies.     The  ob- 
ject of  the  registry  is  merely  to  show  the  national  character  of 
the  vessel ;  and  the  documentary  title  at  the  Custom  House  in 
one  person,  .may  well  consist  with  the  possession  and  control 
of  the  vessel  in  another.     1  Greenl.  Evidence,  §  494  ;  Leonard 
v.  Huntington,  15  Johns.  298  ;  Mackenzie  v.  Pooley,  34  Eng. 
Law  and  Eq.  486.    There  is  no  pretence  that  the  supplies  were 
furnished  on  the  faith  of  this  registry.     To  impose  liability  for 
these  supplies   upon  the  defendant,  it   must  be  shown  that 
credit  for  them  was  given  him  (Abbott  on  Shipping,  40,  41, 
seventh  Am.  ed.).     It  appears  affirmatively  (fol.  38),  that  the 
credit  was  not  given  to  him.     The  alleged  promise  of  the  de- 
fendant to  pay  for  the  supplies  was  without  consideration,  and 
is  conditional. 

II.  The  evidence  offered  to  show  who  was  in  possession  and 
control  of  the  vessel,  and  who  was  the  beneficial  owner,  and  by 
whom  the  contract  for  these  supplies  was  made,  should  have 
been  admitted.     Such   facts    are   the  only  tests  of   liability 
(Abbott  on  Shipping,  48,  7  Johns.  308.) 

The  ruling  of  the  Court  was  erroneous,  as  respects  evidence 
of  ownership.  Sharp  v.  U.  S.  Ins.  Co.,  14  Johns.  201.  And 
it  was  erroneous  in  seeking  to  make  the  defendant's  affidavit 
operate  as  an  estoppel.  Dazell  v.  OdeU,  3  Hill,  219. 


NEW  YORK—OCTOBER,  1801.  173 

Bryan  v.  Bowles. 

The  exclusion  of  the  defeasance  was  also  erroneous.  The 
defendant  had  the  right  to  show  that  the  bill  of  sale  was  a 
mortgage.  As  mortgagee,  not  in  possession,  he  was  not  liable. 
JBirbeck  v.  Tucker,  2  Hall,  121 ;  Ring  v.  Franklin,  2  Hall,  1 ; 
Abbott  on  Shipping  52  ;  Brook*  v.  Bonsey,  17  Pick.  441  ; 
Mclntyre  v.  Scott,  8  Johns.  159. 

Benedict,  Burr  &  Benedict,  for  the  respondents.          • 

BY  THE  COUET. — HILTON,  J. — The  plaintiffs'  right  to  recover 
depended  upon  their  establishing  that  the  supplies  were  fur- 
nished upon  the  credit  of  the  vessel,  and  that  at  the  time  the 
defendant  was  owner. 

The  evidence  on  their  behalf  showed  that  the  supplies  were 
furnished  in  September.  1857,  to  the  vessel,  upon  the  order  of 
her  captain,  and  afterwards,  while  the  vessel  was  at  sea,  on  the 
bill  being  presented  to  the  defendant,  he  promised  to  pay  it 
when  the  captain  arrived  and  saw  the  papers.  Also,  that  in 
June,  1856,  a  bill  of  sale  of  the  vessel  was  made  and  delivered 
to  the  defendant,  by  Deagreda,  Jove  &  Co.,  the  then  owners, 
and  upon  which,  in  December,  1857,  he  procured  her  to  be 
registered  at  the  Custom  House,  in  his  name,  by  making  an 
affidavit  that  he  was  the  true  and  only  owner,  and  that  no 
other  person  was  directly  or  indirectly  interested  in-  her  by  way 
of  trust,  confidence,  or  otherwise ;  the  affidavit  and  claim  of 
ownership  therein  referred  to,  having  been  made,  as  was 
shown,  with  reference  to  the  bill  of  sale,  which  upon  its  face 
was  absolute  and  unqualified. 

In  opposition  to  the  case  thus  made  out,  the  testimony  of  the 
defence  was  in  substance,  that  at  the  time  the  supplies  were 
ordered  by  the  captain,  he  was  accompanied  by  the  general 
ship  agent,  or  as  he  calls  himself,  the  port  admiral,  of  Deagreda, 
Jove  &  Co. ;  but  the  captain  gave  his  own  orders.  That  the 
captain  and  owner  were  employed  by  Deagreda  &  Co.,  but  the 
defendant  subsequently  paid  them,  and  also  paid  the  bill  of  the 
port  admiral  referred  to,  for  the  month  of  September,  1857. 
That  the  bill  of  sale  was  taken  as  collateral  security  for  an  in- 
debtedness of  Deagreda  &  Co.  to  the  defendant,  which  they 
failed  to  pay,  and  on  their  becoming  insolvent,  and  making  to 
the  defendant  a  general  assignment,  in  October,  1857,  he  be- 


174  CO  QKT  OF  COMMON  PLEAS. 

Bryan  v".  Bowles. 

came,  as  he  says,  "in  good  faith,  the  actual  owner  of  the 
vessel,"  claiming  to  be  such  under  the  transfer  in  June,  1856, 
and  not  under  the  assignment.  He  also  testified  that,  to  the 
best  of  his  "  knowledge,  recollection  and  belief,"  he  never  pro- 
mised to  pay  the  plaintiffs'  bill. 

Upon  this  evidence,  the  case  presented  substantially  but  a 
single  question  of  fact  for  the  determination  of  the  Justice,  and 
that  was,  whether,  at  the  time  the  supplies  were  furnished,  the 
defendant  was  the  owner  of  the  vessel  ?  The  Justice  has  found 
this  question  in  the  affirmative,  by  giving  judgment  against 
the  defendant,  and  I  am  unable  to  perceive  any  sufficient 
ground  for  interfering  with  his  decision,  unless  some  of  the  de- 
fendant's exceptions  to  the  admission  or  exclusion  of  evidence 
offered  at  the  trial  are  to  be  regarded  as  material.  Such  of 
those  as  may  be  considered  of  sufficient  importance  to  require 
examination,  I  will  now  advert  to  in  the  order  in  which  they 
are  presented  in  the  case. 

1.  As  to  the  introduction  of  the  registry  of  the  vessel  at  the 
Custom  House,  with  the  affidavit  of  the  defendant,  upon  which 
registry  was  applied  for  and  procured. 

There  can  be  no  doubt,  that  without  proof  to  connect  the 
party  with  the  register,  as  being  his  direct  or  adopted  act,  it 
has  been  frequently  held  not  to  be  even  prima  fade  evidence 
to  charge  him  as  owner  (Sharp  v.  United  Ins.  Co.,  14  Johns. 
201;  Leonard  v.  Huntington,  15  Id.  299;  Fraser  v.  Hopkins, 
2  Taunt.  5;  King  v.  Franklin,  2  Hall,  1,  20;  3  Kent,  150); 
but  it  is  otherwise  when  he  is  connected  with  its  procurement. 
It  then  becomes  competent  proof,  and  like  any  other  act  or 
claim  of  ownership  of  the  party,  may  be  admitted  in  evidence. 
Here  it  was  not  denied,  indeed  it  was  conclusively  shown,  that 
the  defendant  not  only  personally  procured  the  registry,  but  in 
addition,  made  an  affidavit  stating  that  he  was  such  actual 
owner,  and  the  Justice  did  right,  therefore,  in  admitting  the 
evidence.  Although  not  conclusive,  yet  it  was  some  proof 
bearing  upon  the  question  of  ownership,  and  was  entitled  to  be 
considered  by  the  Justice,  in  arriving  at  his  determination 
upon  that  branch  of  the  case. 

2.  The  defendant  offered  to  show  in  substance,  by  several 
questions  put  to  the  witness  Bushman,  that  prior  to  October, 
1857,  the  vessel  was  in  the  actual  possession  of  Deagreda  &  Co., 


NEW   YOKE— OCTOBER,  1861.  175 

Bryan  v.  Bowles. 

and  was  under  their  control  and  management  for  the  voyage 
in  respect  to  which  the  supplies  were  furnished ;  but  the 
Judge  excluded  the  proof,  holding  that  the  Custom  House 
register  was  evidence  of  ownership,  and  that  the  defendant 
could  not  contradict  his  affidavit  upon  which  the  registry  was 
procured. 

The  Judge  also,  at  a  subsequent  stage  of  the  trial,  excluded 
a  written  defeasance  given  by  the  defendant  to  Deagreda  & 
Co.,  at  the  time  of  receiving  the  bill  of  sale,  which  the  defen- 
dant offered  in  evidence,  to  show  that  the  bill  of  sale  was  only 
to  be  held  as  a  mortgage. 

I  think  the  exclusion  in  each  instance  was  clearly  erroneous. 
The  evidence  offered  rnjght  have  had  the  effect  of  overcoming 
the  case  made  by  the  plaintiffs,  absolving  the  defendant  from 
liability,  by  showing  that  the  bill  of  sale  was  in  effect,  a  mort- 
gage executed  as.  collateral  security  for  the  payment  of  a  debt ; 
that  the  supplies  were  furnished  to  the  vessel  before  the  defen- 
dant had  taken  possession,  and  while  the  register  remained  in 
the  name  of  Deagreda  &  Co.,  the  mortgagors,  who  had  the 
control  and  management  of  her.  The  defendant's  affidavit, 
upon  which  he  procured  the  registry,  did  not  work  an  estoppel 
against  proof  of  this  character,  and  it  should  not  have  been 
considered.  Mclntyre  v.  Scott,  8  Johns.  159  ;  Champlin  v. 
Sutler,  18  Id.  169  ;  Jackson  v.  Vernon,  1  H.  Black.  114 ; 
Cfiinnery  v.  Blackburn,  Id.  117;  Thorn  v.  Hicks,  7  Cow. 
697.  A  mortgagee  of  a  vessel  out  of  possession,  cannot  be 
held  for  supplies  furnished  upon  the  order  of  the  master  acting 
under  the  mortgager,  when  lie  does  not  receive  the  profits  of 
the  voyage,  and  the  credit  is  not  in  fact  given  to  him.  Hes- 
kith  v.  Stevens,  7  Barb.  488  ;  King  v.  Franklin,  2  Hall,  S.  C. 
1 ;  Birleck  v.  Tucker,  Id.  121 ;  3  Kent  Com.  139.  It  is  other- 
wise, however,  when  he  has  taken  possession  and  procured  a 
register  in  his  name,  and  supplies  are  thereafter  furnished 
upon  the  credit  of  the  vessel  and  owners.  Miln  v.  Spinola, 
4  Hill,  177  ;  S.  C.  affd.  6  Id.  218  ;  Abbott  on  Shipping,  7  Am. 
ed.  51  and  note. 

Judgment  reversed. 


176  COURT  OF  COMMON  PLEAS. 


Hopkins  v.  Wyckoff. 


JOHN  HOPKINS  v.  SAMUEL  S.  "WYCKOFF. 

The  right  to  recover  the  penalty  given  under  the  pilot  act  of  1853,  as  amended 
1854,  ch.  196 ;  1857,  ch.  243,  (2  Rev.  Stat.  5th  ed.  434,  §  57),  for  the  refusal 
of  the  master  of  a  vessel  to  accept  the  services  of  the  pilot  first  offering, 
is  confined  to  those  pilots  who  have  been  duly  licensed,  as  in  the  act  pre- 
scribed. 

Held,  therefore,  that  a  pilot  not  licensed  by  the  Board  of  Commis- 
sioners of  Pilots,  under  the  laws  of  this  State,  although  licensed  under  the 
statute  of  the  State  of  New  Jersey,  and  authorized  by  the  act  of  Congress, 
(Dunlap's  Laws,  U.  S.,  924),  to  pilot  vessels  coming  in  or  going  out  of  the 
port  of  New  York,  cannot  sue  for  the  pilotage  fees  allowed  by  the  pilot 
laws  of  this  State,  on  the  refusal  of  the  master  of  a  vessel  to  employ  him. 

APPEAL  by  the  plaintiff  from  a  judgment  of  the  First  Dis- 
trict Court,  dismissing  the  complaint. 

The  plaintiff  alleging  that  he  was  a  pilot,  duly  licensed  and 
authorized  by  the  laws  of  the  United  States  and  the  statutes 
of  the  State  of  New  Jersey,  to  pilot  vessels  to  and  from  the 
port  of  New  York,  by  way  of  Sandy  Hook,"brought  the  action 
against  the  defendant,  as  master  of  the  schooner  T.  A.  "Ward, 
to  recover  the  pilotage  fees,  under  section  29,  of  the  laws  of 
1857,  vol.  2,  p.  502,  for  the  refusal  of  the  defendant  to  accept 
the  services  offered  by  the  plaintiff  as  such  pilot. 

The  plaintiff  was  nonsuited,  and  the  complaint  dismissed,  on 
the  ground  that  the  statute  of  this  Sta,te,  under  which  the 
action  was  brought,  applied  only  to  Sandy  Hook  pilots,  licensed 
under  the  laws  of  the  State  of  New  York,  and  did  not  compre- 
hend New  Jersey  pilots.  The  plaintiff  then  appealed  to  this 
Court. 

B.  F.  Hudgett^  for  appellant. 

Wm.  J.  Haskett,  for  respondent. 

BY  THE  COURT. — HLTON,  J. — The  plaintiff  is  a  pilot  duly 
licensed  under  the  laws  of  the  State  of  New  Jersey.  It  appears 


NEW  YOKK— NOVEMBER,  1861.  177 

.  Hopkins  v.  "Wyckoff. 

that  on  August  5th,  1858,  at  the  city  of  New  York,  he  offered 
his  services  as  pilot  to  the  defendant,  who  was  then  captain  of 
the  schooner  T.  A.  "Ward,  which  had  been  cleared  for  Cuba, 
and  that  he  was  the  first  pilot  thus  tendering  his  services  as 
such  to  the  defendant.  For  the  refusal  by  the  defendant  to 
accept  the  services  thus  offered,  the  plaintiff  claims  to  recover 
pilotage  fees  under  section  29,  as  amended  by  "  an  act  to  pro- 
vide for  the  licensing  and  government  of  pilots,  and  regulating 
pilotage  of  the  port  of  New  York,"  passed  June  28,  1853.  See 
Laws  1857,  vol.-l,  p.  502. 

This  act,  as  its  title  indicates,  provides  for  the  licensing  of 
pilots  of  the  port  of  New  York,  and  prescribes  rules  for  their 
government  and  regulation.  To  this  end  it  established  a 
"  Board  of  Commissioners  of  Pilots,"  vesting  it  with  power  to 
license  as  pilots  such  persons  as  may  be  found,  on  examination, 
duly  qualified  ;  to  make  certain  rules  for  their  regulation,  and 
with  authority  to  revoke  or  annul  the  license  for  intoxication 
or  misconduct  of  the  pilot  while  on  duty,  &c.  But  it  is  pro- 
hibited from  granting  a  license  to  any  person  holding  an 
authority  to  act  as  pilot  from  or  under  the  laws  of  any  other 
State.  See  2  R.  S.  [5  ed.]  430,  sec.  37. 

The  portion  of  the  section  of  the  act  under  which  the  plain- 
tiff claims  to  recover,  is  in  these  words :  "  All  masters  of 
foreign  vessels,  and  vessels  from  a  foreign  port,  and  all  vessels 
sailing  under  register,  bound  to  or  from  the  port  of  New  York, 
by  way  of  Sandy  Hook,  shall  take  a  licensed  pilot,  or  in*  case 
of  refusal  to  take  such  pilot,  shall,  himself,  owners,  or  con- 
signees, pay  the  said  pilotage  as  if  one  had  been  employed  ; 
and  such  pilotage  shall  be  paid  to  the  pilot  first  speaking  or 
offering  his  services  as  pilot  to  such  vessel."  (Id.  434,  sec.  57). 

Taking  into  view  that  the  pilotage  fees  here  claimed  to  be 
recovered,  are  such  as  are  given  by  previous  sections  of  the 
act  to  a  pilot  licensed  by  the  Board  of  Pilot  Commissioners,  it 
is,  in  •!  y  opinion,  too  clear  to  admit  of  a  doubt,  that  the  pen- 
alty given  for  a  refusal  to  accept  the  services  of  the  first  pilot 
offering,  is  confined  to  the  pilots  who  have  been  duly  licensed, 
AS  in  the  act  prescribed,  and  as  the  plaintiff  is  one  of  the  class 
of  persons  which  the  Board  is  expressly  prohibited  from 
licensing,  it  follows  that  he  can  have  no  claim  whatever  to  the 
benefits  which  the  act  confers. 
12 


178  COURT  OF  COMMON  PLEAS. 

Johnson  v.  Dixon. 

Nor  does  the  act  of  Congress^,  passed  March  2d,  1837  (See 
Dunlap's  Laws  U.  S.,  924),  aid  his  claims  in  any  manner. 
That  only  goes  to  the  extent  of  permitting  a  master  or  com- 
mander of  a  vessel  coining  in  or  going  out  of  this  port,  to 
employ  any  pilot  licensed  either  by  the  laws  of  New  York  or 
New  Jersey,  and  it  thus  controls  those  parts  of  the  act  in 
question  which  make  it  obligatory  upon  the  master  to  accept 
the  services  of  a  licensed  pilot,  under  the  penalty  declared. 
But  for  this  law  of  Congress,  every  master  of  a  vessel  bound  to 
or  from  this  port,  would  be  obliged,  under  a  penalty,  to  accept 
a  pilot  who  had  been  licensed  by  the  Board  of  Commissioners 
of  Pilots,  provided  such  an  one  should  tender  his  services, 
whereas  by  it  he  is  permitted  to  accept  instead,  a  pilot  licensed 
under  the  laws  of  New  Jersey,  provided  a  New  York  pilot  has 
not  previously  offered  himself;  as  it  is  only  when  a  New  York 
pilot  shall  first  speak  and  offer  his  services  that  he  becomes 
entitled,  upon  refusal,  to  the  penalty  prescribed. 

The  Justice  was  right  in  holding  that  the  plaintiff  had  no 
cause  of  action,  and  his  judgment  should  be  affirmed. 


MARY  JOHNSON  v.  SUSAN  DIXON. 

A  tenant  from  month  to  month  is  under  no  obligation  to  make  substantial 
repairs. 

The  lessor  is  bound  to  ma"ke  such  repairs  as  are  necessary  to  make  the  pre- 
mises secure  and  safe,  for  the  purposes  for  which  they  are  rented ;  and  if 
its  insecurity  is  known  to  him,  it  is  negligence  not  to  do  so. 

The  rule  that  tenant  takes  premises  at  his  own  risk  (caveat  er/iptor),  does  not 
apply  where  the  premises  become  dangerous  or  uninhabitable  by  the 
•wrongful  act  or  default  of  the  landlord. 

Where  a  stall  was  leased  for  the  purpose  of  keeping  a  horse,  and  the  tenant 
informed  the  landlord  of  a  defect  in  the  floor,  and  the  landlord  gave  an 
explanation  of  it,  and  said  he  would  attend  to  it,  and,  through  relying  on 


NEW  YORK— NOVEMBER,  1861.  179 

Johnson  v.  Dixon. 

such  explanation  and  promise,  in  consequence  of  the  insecurity  of  the  floor, 
the  horse  was  injured — Held,  that  this  was  negligence  on  the  part  of  the 
landlord,  and  that  the  tenant  might  recover  damages  for  such  injury. 

The  action  was  brought  in  the  Marine  Court,  to  recover  the 
value  of  a  horse.  It  appeared  on  the  trial  that  the  plaintiff 
had  rented  a  stall  from  the  defendant  at  two  dollars  and  fifty 
cents  per  month  ;  that  there  was  an  excavation  under  the  stall, 
of  which  plaintiff  was  ignorant ;  that  the  flooring  of  the  stall 
was  in  bad  condition,  and  that  plaintiff  called  the  attention  of 
the  defendant's  agent  to  it ;  that  defendant's  agent  gave  as  an 
excuse,  that  it  had  last  been  occupied  by  a  kicking  horse,  and 
that  he  would  attend  to  it ;  that  the  next  night  the  plaintiff's 
horse  had  slipped  his  leg  through,  and  injured  itself  so  that  it 
died.  The  plaintiff  had  judgment,  which  was  affirmed  at 
General  Term,  and  the  defendant  appealed  to  this  Court. 

T.  Stuyvesant,  for  the  appellant. 

I.  There  was  no  evidence  that  the  defendant  ever  agreed 
that  the  stall  was  in  a  safe  condition. 

II.  The  plaintiff  was  aware  that  the  stall  was  not  secure, 
and  should  have  repaired  it ;  and  not  having  done  so,  she  must 
bear  the  loss.    Kastor  v.  Newhouse,  4:  E.  D.  Smith,  20. 

HI.  In  the  absence  of  any  agreement  in  regard  to  repairs, 
the  plaintiff  cannot  call  on  the  defendant  to  make  them. 
Blunt  v.  Aifen,  15  Wend.  522. 

Charles  Davies,  for  respondent. 

BY  THE  COURT. — DALY,  F.  J. — If  the  injury  to  the  plain- 
tiff's horse  was  the  result,  exclusively,  of  a  wrongful  act,  or  of 
negligence  on  the  part  of  the  defendant,  the  judgment  was 
right,  and  that  depends  upon  whether  the  defendant,  after 
being  advised  that  a  piece  of  wood  had  come  off  the  floor  of 
the  stall,  was  bound  to  do  what  was  necessary  to  render  the 
floor  secure  and  safe.  It  was  proved  that  there  was  an  exca- 
vation under  the  stall,  of  about  ten  feet,  and  that  the  flooring 
of  the  stall  was  rotten.  It  was  fair  to  presume,  from  the  de- 
fendant's being  the  proprietor  of  the  stall,  that  this  was  known 
to  him.  -It  was  not  known  to  the  plaintiff  when  she  rented  the 
stall,  nor,  as  would  appear,  to  her  son,  who  had  the  charge  of 


130  COUET  OF  COMMON  PLEAS. 


Johnson  v.  Dixon. 


the  horse.  The  son  called  the  attention  of  the  defendant's 
agent,  with  whom  the  agreement  for  the  use  of  the  stall  had 
been  made,  to  the  fact  that  the  piece  of  wood  had  come 
out  of  the  floor,  and  that  the  stall  was  not  fit  for  the  horte,  and 
received  for  answer,  that  a  butcher  had  had  a  kicking  horse 
there,  and  that  he,  the  agent,  would  attend  to  it.  The  morn- 
ing after  this  was  said,  it  was  found  that  the  horse  had  broken 
through  the  floor ;  his  hind  leg  was  found  through  it,  and  in 
consequence  of  the  injury  thus  received,  the  animal  died. 
After  the  accident  the  defendant  had  the  old  floor  torn  up  and 
a  new  one  put  down. 

The  plaintiff  hired  the  use  of  the  stall  from  the  defendant's 
agent,  for  two  dollars  and  tifty  cents  a  month,  and  under  a  let- 
ting like  this  she  was  under  no  obligation  to  take  up  the  defec- 
tive floor  and  put  down  a  new  one.  Where  there  is  no  express 
agreement  on  either  side,  the  tenant,  under  such  a  holding  is 
not  bound  to  make  repairs  of  so  substantial  and  general  a 
nature.  Horse/all  v.  Mather,  Holt  N.  P.  C.  7;  Taylor's 
Landlord  and  Tenant,  163.  If,  as  appears  from  the  defendant's 
net,  this  was  what  was  necessary  to  be  done,  to  make  the  stall 
secure  and  safe  for  the  purpose  for  which  it  was  used,  the 
obligation  rested  upon  the  defendant  to  do  it,  and  such  being 
the  fact,  the  Justice  was  right  in  holding  that  it  was  through 
her  negligence  in  not  doing  it,  that  the  accident  happened. 

It  is  urged  that  under  this  letting  the  relation  of  landlord 
and  tenant  existed,  and  tha.t  as  there  was  no  express  agreement 
on  the  part  of  the  defendant  to  put  or  keep  the  stall  in  repair, 
the  plaintiff  for  an  injury  to  her  property,  from  the  stall's 
being  out  of  repair,  must  bear  the  loss.  It  is  undoubtedly  the 
rule  in  tenancy  of  no  greater  duration  than  from  year  to  year, 
where  there  is  no  agreement  on  the  part  of  the  landlord  to  re- 
pair, that  the  tenant  takes  the  premises  as  they  are,  for  better 
or  worse,  and  runs  the  hazard  of  their  being,  or  of  their  be- 
coming, untenantable.  Post  v.  Vetter,  2  E.  D.  Smith,  248  ; 
Cleves  v.  Willoughby,  7  Hill,  83.  The  principle  upon  which 
the  rule  of  caveat  emptor  is  founded,  is  as  applicable  in  such  a 
case  as  in  the  purchase  of  a  chattel.  But  this  rule  has  its  limit- 
ation, and  does  not  apply  where  the  premises  become  danger- 
ous or  uninhabitable  by  the  wrongful  act  or  default  of  the 
landlord  himself.  Izon  v.  Gortin,  5  N.  C.  501..  In  this  case, 


NEW  YORK— NOVEMBER,  1861.  181 


Johnson  v.  Dixon. 


the  defendant's  agent  was  advised  of  the  condition  of  the  floor, 
and  but  for  his  statement  as  to  the  cause  which  produced  it, 
and  his  promise  to  attend  to  it,  the  horse  might  have  been 
withdrawn  and  the  accident  prevented.  Neither  the  plaintiff 
nor  her  son  could  be  deemed  guilty  of  negligence.  The  son 
knew  nothing  of  the  excavation  beneath  the  floor,  but  sup- 
posed that  the  floor  rested  upon  solid  ground,  and  the  assur- 
ances given  him  by  the  defendant's  agent  were  of  a  nature  to 
quiet  all  apprehension.  That  the  horse  was  suffered  to 
remain  upon  a  floor  that  was  insecure  and  dangerous,  until  the 
accident  happened,  was  by  the  default  of  the  defendant's  agent, 
in  not  doing  what  he  had  promised  to  do.  The  defendant 
being  under  an  obligation  to  repair  the  floor,  and  the  defendant's 
agent  having  promised  to  attend  to  it,  the  Justice  had  a  right 
to  conclude  that  the  horse,  after  the  conversation  between  the 
plaintiff's  sou  and  the  agent,  was  left  in  the  stall  upon  the  faith 
of  that  assurance.  No  attention  was  paid  to  the  floor  by  the 
agent  until  the  horse  fell  through  it,  and  it  was  in  consequence 
of  this  default  and  neglect  that  the  floor  gave  way.  That  the 
floor  was  insufficient  to  support  the  horse  at  the  time  when  the 
accident  happened,  was  owing  exclusively  to  the  wrongful  act 
or  default  of  the  defendant  or  her  agent,  and  to  such  a  case  the 
rule  abovo  referred  to  does  not  apply. 

The  judgment  should  be  affirmed. 
BRADY,  J.  Concurred. 

HILTON,  J". — [dissenting.'] — I  can  perceive  no  ground  upon 
which  this  judgment  can  be  sustained.  It  is  too  late  now  to 
question  the  propriety  of  the  rule  that  a  landlord  is  under  no 
obligation  to  repair  demised  premises  without  an  express 
covenant  on  his  part  to  that  effect,  and  that  to  create  such  a 
duty,  a  positive  stipulation,  an  express  promise  or  covenant,  is 
necessary  to  be  shown. 

This  rule  of  law  lias  become  so  fixed  and  settled  by  a  long 
series  of  adjudications  as  applicable  to  every  species  of  tenancy, 
whether  at  will  or  sufferance,  or  for  any  definite  period  of 
time,  that  any  change  in  it  which  may  be  needed  by  the  pre- 
sent condition  of  society  must  be  effected  by  the  Legislature 
directly,  and  not  indirectly  by  the  Courts,  whose  duty  it  ia  to 


182  COURT  OF   COMMON  PLEAS. 

Peterson  v.  Walsh. 

declare  the  law  as  they  find  it  established.  4  Kent,  110  ;  Mum- 
ford  v.  Brown,  6  Cowen,  475  ;  Taylor's  Landlord  and  Tenant, 
155,  and  cases  cited  ;  Cleves  v.  Willough'by,  7  Hill,  83  ;  How- 
ard v.  Doolittle,  3  Duer,  464-';  Post  v.  Vetter,  2  E.  D.  Smith, 
248 ;  Kastor  v.  Newhouse,  4  Id.  20 ;  Hazlett  v.  Powell,  30 
Penn.  293.  *  , 

The  maxim  cdveat  emptor  is  equally  applicable  to  the  trans- 
fer of  real  as  of  personal  property  ;  and  upon  a  demise,  in  the 
absence  of  any  express  agreement  on  the  part  of  the  landlord, 
the  lessee  takes  the  premises  for  better  or  worse,  and  although 
they  may  be  let  for  a  particular  purpose,  there  will  be  no  war- 
ranty implied  that  they  are  fit  to  be  used  for  the  purpose  for 
which  alone  they  may  have  been  demised. 

Thus,  in  the  present  case,  although  the  premises  hired  by  the 
plaintiff  of  the  defendant  was  a  stall  in  a  stable,  and  the  sole 
object,  of  hiring  the  stall  was  obviously  for  the  purpose  of  keep- 
ing a  horse  in  it,  yet  there  was  no  implied  warranty  on  the  part 
of  the  defendant  that  it  was  fit  for  such  a  purpose.  If  the 
plain  tiff  had  any  doubts  as  to  the  stall  being  fit  for  the  object 
intended  by  her,  she  should,  at  the  time  of  hiring,  have  pro- 
tected herself  by  an  express  agreement  on  the  subject ;  but  not 
having  done  so,  she  must  abide  the  consequences. 

Judgment  affirmed. 


CHBIBTIAN  PETERSON  v.  LEWIS  WALSH  and  oth&rs. 

The  penal  laws  of  a  State  being  strictly  local  in  their  character  and  effect, 
there  can  be  no  recovery  for  an  offence  under  them  committed  beyond  the 
territorial  jurisdiction  of  the  State. 

The  statute  (2  Rev.  Stat.  5th  ed.  435,  §  57),  requiring  masters  of  certain  vessels 
coming  into  the  port  of  New  York  to  accept  the  services  of  a  licensed  pilot 
first  offering  his  services,  and  imposing  a  penalty  in  case  of  refusal,  cannot 
control  or  affect  the  master  of  a  vessel  prior  to  his  arrival  within  the  terri- 
torial jurisdiction  of  tlie  State. 


NEW  YOKK— NOVEMBER,  1861.  183 


Peterson  v.  Walsh. 


A  pilot,  therefore,  who  spoke  a  vessel  three  hundred  miles  at  sea,  and  tendered 
his  services,  which  were  refused,  cannot  recover  pilotage  fees  under  the 
statute  authorizing  such  actions. 

Where,  on  an  appeal  from  a  judgment,  by  the  defendant  to  the  General  Term, 
the  facts  were  agreed  on  by  the  parties,  and  could  not  be  varied  by  any 
evidence  which  might  be  adduced  on  a  new  trial,  and  a  reversal  was  had,— 
Held,  that  final  judgment  for  defendants  should  be  given  on  such  reversal. 

APPEAL  by  the  plaintiff  from  a  judgment  of  the  Marine 
Court  at  General  Term. 

The  facts  fully  appear  in  the  opinion  of  the  Court. 

H.  R.  Cummings,  for  appellant. 
Charles  Donahue,  for  respondent. 

BY  THE  COURT. — HILTON,  J. — It  was  admitted  on  the  trial, 
that  the  plaintiff  is  a  pilot  of  the  port  of  New  York,  duly 
licensed  by  the  "  Board  of  Commissioners  of  Pilots,"  and  the 
defendants  are  owners  and  consignees  of  the  ship  E.  Sherman. 
That  on  July  14th,  1859,  while  the  ship  was  on  a  voyage  from 
Liverpool,  bound  to  this  port,  and  when  at  a  point  in  the  At- 
lantic ocean,  about  three  hundred  miles  east  of  Sandy  Hook 
light  house,  she  was  spoke  by  the  plaintiff,  who,  then  and 
there,  tendered  her  master  his  services  as  such  pilot,  to  pilot 
her  into  port,  that  the  master  refused  to  take  the  plaintiff  aa 
pilot,  although  he  was  the  first  one  speaking  or  offering  his  ser- 
vices as  such ;  the  reason  then  given  for  such  refusal  being, 
that  the  ship  was  not  on  pilot  ground.  That  subsequently, 
and  before  her  arrival  at  New  York,  a  pilot  was  taken  and  his 
eer vices  were  paid  for.  The  ship  at  the  time  was  drawing 
twenty  feet  of  water. 

Upon  these  facts  the  Justice  gave  judgment  in  favor  of  the 
plaintiff  for  one  hundred  and  two  dollars,  and  from  a  reversal 
of  which,  by  the  General  Term  of  the  Marine  Court,  the  plain- 
tiff appeals  to  this  Court. 

This  judgment  was  based  upon  section  29  of  "  an  act  to  pro- 
vide for  the  licensing  and  government  of  t,lie  pilots,  and  regu- 
lating pilotage  of  the  port  of  New  York,"  passed  June  28th, 
1853,  (see  Laws,  p.  921),  as  amended  April  3d,  1857.  (See 
Laws,  p.  500. ;  2  R.  S.  [5  ed.]  435),  the  portion  of  which  mate- 


184  COURT  OF  COMMON  PLEAS. 

Petereou  v.  Walsh. 
• 

rial  to  be  considered,  is  in  these  words :  "  All  masters  of 
foreign  vessels  and  vessels  from  a  foreign  port,  and  all  vessels 
sailing  under  register  bound  to  or  from  the  port  of  New  York, 
by  the  way  of  Sandy  Hook,  shall  take  a  licensed  pilot ;  or  in 
case  of  refusal  to  take  such  pilot,  shall,  himself,  owners,  or  con- 
signees, pay  the  said  pilotage  as  if  one  had  been  employed ; 
and  such  pilotage  shall  be  paid  to  the  pi|ot  first  speaking  or 
offering  his  services  as  pilot  to  such  vessel ;"  the  rates  or  fees 
of  pilotage  being  specified  in  section  14  of  the  same  act,  as 
amended  by  chap.  190,  of  the  laws  of  1854. 

The  right  of  this  State  to  enact  such  a  law  cannot  now  be 
questioned,  although  for  some  time  it  seemed  to  be  considered 
a  subject  of  much  doubt.  See  Joint  Resolution,  Laws  1847, 
p.  484 ;  also  many  similar  resolutions  in  previous  sessions  of 
our  Legislature.  The  question,  however,  was  finally  disposed 
of  and  put  at  rest  by  the  United  States  Supreme  Court,  in 
Cooley  v.  The  Port  Wardens  of  Philadelphia,  12  Howard  U. 
S.  R.  209,  decided  in  1851.  It  was  there  held  that  although 
the  power  to  "  regulate  commerce  with  foreign  nations,"  &c., 
contained  in  the  Federal  Constitution  (see  art.  1,  sec.  8,  sub. 
3),  includes  the  regulation  of  navigation,  to  which  the  subject 
of  pilots  and  pilotage  bears  an  important  relation,  and  that, 
therefore,  their  regulation  is  within  the  grant  to  Congress  of 
the  commercial  power,  yet,  that  such  grant  does  not  per  se 
deprive  the  States  of  all  power  to  regulate  pilots  and  pilotage 
within  their  respective  territories. 

The  regulation  of  commerce  comprehends  various  subjects 
quite  unlike  in  character,  some  requiring  a  single  and  uni- 
form rule,  operating  equally  upon  the  commerce  in  every  part 
of  the  United  States,  while  others,  like  the  act  in  question,  de- 
mand that  diversity  which  alone  can  meet  the  local  necessities 
of  navigation.  In  the  first  class  of  cases,  the  power -is  vested 
exclusively  in  Congress,  but  in  the  latter,  the  several  States 
possess  the  power,  controlled,  however,  by  such  general  regu- 
lations upon  the  subject  as  Congress  may  see  fit  to  establish. 

I  may  add  that  there  exists  onty  one  instance  where  it  has 
manifested  an  intent  to  interfere  with  the  legislation  of  the 
States  in  this  respect,  and  that  is  the  act  of  March  2d,  1837 
(see  Dunlop'sU.  S.  Laws,  924;  Stat.  at  Large,  153),  which  de- 
clares that  it  shall  be  lawful  for  the  master  or  commander  of 


NEW  YORK— NOVEMBER,  1861.  185 


Peterson  v.  Walsh. 


any  vessel  coming  into  or  going  out  of  any  port  situate  upon 
waters  which  are  the  boundary  between  two  States,  to  employ 
any  pilot  duly  licensed  or  authorized  by  the  laws  of  either  of 
the  States  bounded  on  the  said  waters,  to  pilot  said  vessel  to  or 
from  said  port ;  any  law,  usage  or  custom  to  the  contrary,  not- 
withstanding. 

But  although  the  power  to  enact  this  law  exists  in  our  State, 
it  has  no'intrinsic  force,  and  cannot  operate  ex  propria  vigore, 
beyond  its  territory ;  it  being  an  universal  rule,  that  laws  have 
no  force  beyond  the  territories  of  those  who  make  them.  And 
especially  is  this  rule  applicable  where  the  law  is  but  a  munic- 
ipal regulation  of  a  State  respecting  a  subject  which  is  not 
mala  in  se.  2  Kent's  Com.  457  ;  Story's  Conflict  of  Laws,  sec. 
22,  p.  24 ;  Sedgwick  on  Constitutional  Law,  70,  80 ;  Bank  of 
Augusta  v.  Earle,  13  Peters,  591,  584.  % 

The  general  jurisdiction  of  a  State  extends  into  the  sea  as  far 
as  a  cannon  shot  will  reach,  but  no  further,  and  this  distance  is 
calculated  to  be  a  marine  league.  Bowyer  on  Univer.  Pub. 
Law,  361 ;  1  Kent's  Com.  29 ;  Vattel,  207,  and  also  an  act 
of  Congress,  June  5,  1794,  ch.  50,  recognizing  this  limitation, 
by  authorizing  the  District  Courts  to  take  cognizance  of  all 
captures  made  within  a  marine  league  of  American  shores. 
And  as  penal  laws  are  strictly  local  in  their  character  and 
effect,  it  follows,  as  a  natural  and  necessary  consequence,  that 
there  can  be  no  recovery  for  an  offence  committed  beyond  this 
territorial  jurisdiction ;  the  rule  being  that  a  State  can  only 
punish  for  offences  committed  within  its  limits,  and  especially 
is  this  true  of  those  offences  which  consist  merely  in  violating 
its  municipal  laws  and  regulations.  1  Phillimore  on  Int.  Law, 
356 ;  Scovitte  v.  Canfidd,  14  Johns.  338 ;  Van,  Seaick  v.  Ed- 
wards, 2  Johns.  Cases,  355. 

Besides,  the  act  under  consideration,  as  its  title  indicates,  is 
but  a  port  regulation,  requiring,  among  other  things,  that  all 
vessels  of  a  certain  class,  coming  into  the  port  of  New  York, 
shall,  upon  their  entering  the  territorial  jurisdiction  of  the 
State,  accept  the  services  of  a  licensed  pilot,  provided  such 
a  pilot  shall  tender  his  services  ;  and  in  no  proper  sense  can  it 
be  regarded  as  controlling  or  affecting  the  conduct  of  a  master 
of  a  foreign  vessel  prior  to  his  arrival  within  such  jurisdiction. 
To  hold  otherwise  would,  it  seems  to  me,  require  us  to  declare 


186  COURT   OF  COMMON    PLEAS. 

Loomis  v.  Decker. 

that  a  pilot  duly  licensed  by  our  State  authority  must  be  ac- 
cepted by  any  vessel  bound  to  this  port,  wherever,  upon  the 
ocean  or  elsewhere,  he  may  see  fit  to  tender  his  services, 
whether  the  tender  be  made  three  hundred  or  three  thousand 
miles  distant.  w\ 

The  mere  statement  of  such  a  proposition  refutes  itself. 

The  General  Term  of  the  Marine  Court  was,  therefore,  right 
in  revereing  the  judgment,  but  as  the  facts  were  agreed  on  by 
the  parties,  and  would  not  be  varied  by  any  evidence  which 
might  be  adduced  upon  another  trial,  in  addition  to  the 
reversal,  there  should  have  been  given  a  final  judgment  in 
favor  of  the  defendants. 

A, 

The  case  must  be  sent  back  to  the  Marine  Court,  to  the  end 
that  the  proper  judgment  may  be  thereon  given. 


BILEY  LOOMIS  and  others  v.  NICHOLAS  H.  DECKER. 

To  revive  a  debt  barred  by  the  statute  of  limitation,  where  no  promise  to  pay 
is  shown,  but  one  is  sought  to  be  implied  from  an  acknowledgment  of  the 
indebtedness,  the  acknowledgment  should  contain  an  unqualified  and  direct 
admission  of  a  pre^ous  subsisting  debt,  for  which  the  party  is  liable, 
and  willing  to  pay ;  and  the  recognition  must  be  unaccompanied  by  any 
circumstance  calculated  to  repel  the  presumption  of  an  intent  or  promise 
to  pay. 

Where  the  debtor,  in  a  letter  to  his  creditor,  said,  "  I  don't  recollect  when  the 
bill  was  made ;  but  if  it  is  all  right,  I  will  make  it  satisfactory,"  and  added 
that  he  had  certain  railroad  bonds,  which  he  hoped  would  be  accepted  hi 
payment,  "  as  money  was  out  of  the  question;" — Held,  sufficient  to  take  the 
case  out  of  the  statute. 

It  is  the  province  of  the  Court,  sitting  as  a  jury,  to  find,  as  matter  of  fact, 
whether  a  new  promise,  under  the  circumstances,  might  fairly  be  implied, 
and  a  finding  by  the  Court  hi  this  respect,  like  the  verdict  of  a  jury,  must 
be  deemed  final. 


NEW  YOKE.— NOVEMBER,   1861.  187 

Loomis  v.  Decker. 

APPEAL  by  the  defendants  from  a  judgment  of  the  Marine 
Court,  at  General  Term. 

The  action  was  brought  to  recover  for  three  bills  of  powder 
sold  by  the  plaintiffs  to  the  defendant,  in  1852,  on  a  credit  of 
eight  months.  On  the  trial  the  defendant  admitted  that  "  the 
powder  mentioned  in  the  complaint  was  sold  and  delivered  to 
the  defendant  by  the  plaintiffs,  in  the  manner  and  at  the  times 
and  prices  therein  alleged,"  and  relied  solely  on  the  Statute 
of  Limitations  as  a  defence. 

The  plaintiffs,  to  take  the  case  out  of  the  statute,  proved  the 
rendition  by  plaintiffs'  attorneys  of  the  bill  sued  for  in  this 
action  to  defendant,  December  28th,  1859,  with  a  request  of. 
payment,  and  a  letter  in  reply  by  defendant  to  plaintiff  same 
date,  as  follows 

NEW  YORK,  Dec.  28,  1859. 
MESSRS.  Looms  &  MASTERS  : 

Gents, — I  got  a  line  from  lawyers  here  this  afternoon, 
a  bill  of  one  hundred  and  fifty-four  dollars  and  thirty- 
eight  cents.  I  don't  recollect  when  the  bill  was  made 
or  when  I  had  the  powder.  Will  you  send  the  bill,  and  if  it  is 
right  I  will  make  it  all  satisfactory.  I  don't  want  it  sued.  I 
have  bonds  on  the  Staten  Island  R.  R.  Co.  I  will  pay  you  in, 
if  the  bill  is  all  right.  The  bonds  I  take  at  eighty-five  cents  on 
the  dollar.  You  had  better  write  to  your  counsel  to  take  the 
bonds,  and  close  the  matter  right  .up.  I  hope  you  will  do  it, 
for  money  is  out  of  the  question.  Please  answer  me  at  once. 

Yours,  respectfully, 

N.  H.  DECKER. 

The  Court  below  ordered  judgment  for  the  plaintiffs.  The 
General  Term  of  the  Marine  Court  having  affirmed  the  judg- 
ment, the  defendant  appealed  to  this  Court. 

H.  W.  Dewey  (Dewey  &  Savage),  for  appellants 

I.  An  acknowledgment,  in  order  to  raise  the  presumption 
of  a  promise  to  pay  a  debt  barred  by  the  Statute  of  Limitations, 
must  be  unconditional,  and  express  a  willingness  to  pay  it  in 
money. 


188  COUKT  OF  COMMON  PLEAS. 

Loomis  v.  Decker. 
" 

II.  Where  a  promise  to  pay  a  debt,  barred  by  the  Statute 
of  Limitations,  in  certain  specific  articles,  the  promise  is  con- 
ditional, and  the  plaintiff  is  bound  to  show  that  he  offered  and 
was  ready  to  accept  the  specific  article.  Bush  v.  Barnard^ 
8  Johns.  407. 

Wbodbury  &  Churchill,  for  respondent. 

I.  A  promise  to  make  satisfactory,  made  to  a  creditor,  is 
equivalent  to  a  promise  to  pay.      "  Satisfactory,"  in  this  con- 
nection   means    satisfactory   to   the   creditor.      Pitikerton  v. 
Brady,  8  Wend.  600 ;    5  Binney,  579 ;  Sliiby  v.  Champlin, 
4  Johns.  461 ;  McGrtry  v.  McKisson,  4  Johns.  K.  C.  510 ;  Ed- 
mons  v.  Goaten,  9  Eng.  L.  &  Eq.  202. 

II.  The   promise  to  make  the  bill  all  satisfactory,  i.  e.,  to 
pay  it,  was  based  on  a  single  condition,  "  that  it  was  all  right." 
This  became  an  absolute  promise,  sufficient  to  take  the  case 
out  of  the  statute  on  proof  that  the  bill  was  right.     Heyling  v. 
Hastings,  1   Salk.  29  ;  Trueman  v.  Fenton,  Cowp.  148 ;  Slate 
v.  Town,  38  Verm.  771 ;  Paddock  v.  Colby,  18  Verm.  485 ; 
Deem  v.  Pitts,  10  Johns,  35  ;   Mosher  v.  Hubbard,  23  .Johns. 
510. 

BY  THE  COURT. — HILTON,  J. — To  revive  a  debt  barred  by 
the  Statute  of  Limitations,  where  there  is  no  express  promise 
to  pay  shown,  but  one  is  sought  to  be  implied  from  an  acknow- 
ledgment of  the  indebtedness,  the  acknowledgment  should 
contain  an  unqualified  and  direct  admission  of  a  previous 
subsisting  debt,  for  which  the  party  is  liable  and  willing  to 
pay;  or,  in  other  words,  there  should  be  a  clear  recognition  of 
the  present  existence  of  the  demand  from  which  a  promise 
may  be  implied,  and  the  recognition  must  be  unaccompanied 
by  any  circumstance  calculated  to  repel  the  presumption  of  an 
intent  or  promise  to  pay.  Sands  v.  Gelston,  15  Johns. 
511 ;  Purdy  v.  Austin,  3  Wend.  189 ;  Bell  v.  Morrison, 
1  Peters,  357 ;  Stafford  v.  Bryan,  2  Paige,  45  ;  Allen  v.  Web- 
ster, 15  Wend.  284 ;  Stafford  v.  PicJeerson,  Id.  302 ;  Blood- 
good  v.  Bruen,  4  Selden,  362  ;  Wakeman  v.  Sherman,  5  Id, 
85  ;  Mosher  v.  Hubbard,  13  Johns.  510. 

Tested  by  these  rules,  the  letter  of  the  defendant  was  suflfi- 


NEW  YORK— NOVEMBER,  1861.  139 

Loomis  v.  Decker. 

cient  to  charge  him  with  the  liability  sued  on.  It  was,  in  sub- 
stance, that  he  did  not  recollect  when  the  claim  arose,  but  not- 
withstanding this,  if  he  had  received  the  powder  which  formed 
the  subject  of  the  debt,  and  the  bill  for  it  was  right,  he  would 
make  it  satisfactory.  To  this  he  adds,  that  he  has  certain  Rajl 
Road  Bonds  which  he  had  purchased  at  85  cents  on  the  dollar, 
and  hoped  they  would  be  accepted  in  payment,  as  money  was 
out  of  the  question. 

The  fair  inference  from  snch  language,  I  think,  is,  that  on 
the  indebtedness  being  shown  to  have  existed,  he  would  make 
it  satisfactory  to  the  plaintiffs  by  paying  it.  Heyling  v. 
Hastings,  1  Salk.  29 ;  Starily  v.  Champlin,  4  Johns.  461. 
That  he  had  certain  property  more  than  sufficient  to  pay  the 
claim,  but  no  money,  and  he  therefore  hoped  that  the  plaintiffs 
would  be  satisfied  by  taking  the  property  at  a  rate  of  value  to 
be  adjusted.  Brown  v.  Reach,  24  Conn.  73 ;  Edmonds  v. 
Goater,  9  Eng.  Law  &  Eq.  204 ;  Hooper  v.  Stevens,  7  Car.  & 
Payne,  261. 

There  was  nothing  in  this  calculated  to  raise  an  inference 
that  he  intended  to  avoid  the  payment  of  the  claim,  provided 
its  correctness  was  shown,  and  as  its  validity  was  admitted  by 
him  at  the  trial,  I  think  the  Justice  properly  construed  the 
acknowledgment  to  be  such  a  one  as  from  which  a  promise  to 
pay  might  fairly  be  inferred,  and  his  finding,  in  this  respect, 
like  the  verdict  of  a  Jury,  should  be  regarded  as  final,  under 
the  circumstances  shown,  and  ought  not  to  be  disturbed. 
Watkiw  v.  Stevens,  4  Barb.  160. 

Judgment  affirmed. 


190  COUKT  OF  COMMON  PLEAS. 


The  Boston  Carpet  Company  v.  Journeay. 


THE  BOSTON  CARPET  COMPANY  v.  ALBERT  JOURNEAY,  JR.,  and 

others. 

Where  a  factor,  agent,  or  broker  misconducts  himself  in  the  business  of  his 
agency,  so  that  his  services  have  not,  by  reason  of  his  misconduct,  negli- 
gence, or  fraud,  been  of  any  benefit  to  his  principal,  or  have  not  proved  as 
beneficial  as  they  otherwise  would,  but  for  his  misconduct,  he  forfeits  his 
right  to  commission. 

But  where  a  commission  merchant  in  rendering  accounts  of  his  sales,  returned 
certain  sales  as  made  at  a  lower  rate  than  appeared  on  his  books, — Held, 
that  although  the  principal  might  recover  the  difference  between  the 
amount  of  the  sales  actually  made  and  those  returned,  yet,  no  fraud  being 
proved,  he  could  not  recover  the  commissions  already  paid,  and  allowed  to 
the  merchant  for  services  actually  performed  in  and  about  the  business. 

APPEAL  by  the  defendant  from  a  judgment  entered  at 
Special  Term  on  the  report  of  a  referee. 

In  December,  1852,  the  defendants  were  jobbers  of  carpets 
and  other  goods  in  the  city  of  New  York,  selling  mostly  to  re- 
tailers in  the  Southern  and  Western  States,  and  in  the  northern 
and  western  counties  of  this  State.  Under  date  of  December 
10,  1852,  an  agreement  in  writing  was  entered  into  between  one 
Crawshaw  and  defendants,  by  which  Crawshaw  was  to  manu- 
facture and  ship  carpets  to  defendants  for  sale  on  commission, 
and  defendants  were  to  make  advances  thereon.  The  only  part 
of  this  agreement  which  is  material  is  the  4th  clause,  in  these 
words : 

Fowrih. — That  said  firm  of  A.  Journeay,  Jr.  &  Co.  shall 
guaranty  all  sales  of  said  carpets  which  they  may  make,  and 
shall  keep  all  on  hand  covered  by  insurance  against  fire,  and 
in  addition  to  all  charges  for  insurance,  storage,  drayage,  labor, 
and  other  customary  charges  with  commission  merchants  in 
New  York,  they  shall  be  entitled,  as  a  full  compensation  for 


NEW  YORK— JANUARY,  1862.  191 

The  Boston  Carpet  Company  v.  Journeay. 

their  services,  to  a  commission  of  six  per  cent,  on  the  amount 
of  all  sales  to  customers  of  the  first  class,  and  upon  the  amount 
of  all  sales  to  bustomers  of  the  second  class  an  additional  and 
further  commission,  so  that  the  sales  to  customers  of  the  second 
class  shall  yield  and  produce  to  the  parties  of  the  first  part  as 
much,  and  no  more,  per  yard,  than  the  sales  to  customers  of 
the  first  class,  this  additional  premium  being  for  the  additional 
risk  incurred,  and  for  the  longer  period  they  may  be  obliged 
$o  wait  for  the  receipt  of  the  proceeds  ;  it  being  also  left  to  the 
said  firm  to  determine  who  are  the  first  and  who  are  the  second 
class  of  customers. 

Under  this  agreement  the  business  was  carried  on  with 
Crawshaw  and  his  successors  and  assignees  until  September, 
1853,  the  defendants  from  time  to  time  receiving  goods,  mak- 
ing advances  and  rendering  accounts  sales.  The  sales  were  to 
small  dealers,  a  large  proportion  of  whom  resided  in  distant 
places. 

In  rendering  the  account  sales,  the  defendants,  in  the  case 
of  sales  to  customers  of  the  second  class,  returned  the  sales  at 
the  rate  of  sales  to  customers  of  the  first  class,  instead  of  return- 
ing them  at  the  actual  rate,  and  then  deducted  the  excess 
over  the  price  to  customers  of  the  first  class. 

In  1854,  this  action  was  brought,  charging,  amongst  other 
things,  that  the  defendants  had  rendered  false  accounts,  and 
fraudulently  retained  a  portion  of  the  price  for  which  the 
goods  were  sold,  and  claiming  that  they  had,  for  this  and 
other  misconduct  and  fraud,  forfeited  their  commissions.  • 

The  defendants  denied  all  misconduct  and  fraud,  and  justi- 
fied the  return  of  the  sales  to  customers  of  the  second  class  at 
the  prices  for  which  sales  were  made  to  customers  of  the  first 
class  under  the  fourth  clause  of  the  agreement. 

The  case  was  tried  before  a  referee.  The  referee  found 
against  the  defendants  upon  two  of  the  charges  contained  in 
the  complaint,  to  wit,  the  reclamations  for  short  measure,  and 
the  withholding  of  a  portion  of  the  price  for  which  some  of 
the  goods  were  sold.  As  a  penalty  for  this,  he  forfeited  the 
defendant's  commission. 

The  defendants  appealed  to  the  General  Term. 


192  COURT  OF  COMMON  PLEAS. 

The  Boston  Carpet  Coaipany  v.  Journeay. 

M.  Porter  and  Wm.  3f.  Euarts  for  appellants. 

I.  The  referee  does  not  find,  as  a  matter  of  fact,  that  the 
defendants  were  guilty  of  fraud  or  of  intentional  misconduct. 
His  conclusion  of  law,  that  defendants  did  not  earn,  and  were 
not  entitled  to  commissions,  is,  therefore,  not  sustained  by  his 
finding  of  fact.    There  is  no  case  where  it  is  held  that  an  agent 
forfeits  his  commission,  except  for  fraud  or  wilful  misconduct 
judicially  established.   The  referee  does  not  convict  defendants 
of  fraud,  yet  he  punishes,  them  as  if  they  were  guilty. 

II.  The  cases  where  agents  have  been  disallowed  their  com- 
pensation on  account  of  neglect  or  misconduct,  were  cases 
where  the  agent  was  suing.     We  believe  there  is  no  case 
where  the  principal  has  been  permitted  to  recover  it  back 
when  once  paid. 

Augustus  F.  Smithy  for  respondents. 

It  is  well  established,  that  the  agent  who  defrauds  his  prin- 
cipal earns  nothing  by  way  of  compensation.  (Smith's  Mer. 
Law,  155  ;  Sea  v.  Carpenter,  16  Ohio,  412 ;  Thurst  v.  Hold- 
ing, 3  Taunt,  31 ;  Ridgway  v.  Ludlow,  3  Halst.  Ch.  R.  123 ; 
1  Parsons  on  Contracts,  84,  and  Cases  cited ;  Dunlop's  Paley's 
Agency,  104,  note  /}. 

BY  THE  COURT. — HILTON,  J. — If  the  sales  made  were  not  all 
to  customers  such  as  are  denominated  in  the  agreement  be- 
tween the  parties,  as  "  first  class,"  the  defendants  should  have 
established  the  fact  by  proof ;  not  having  done  so,  we  must, 
assume,  as  the  referee  did,  that  they  were  unable  to  furnish 
any  favorable  evidence  on  the  subject. 

The  same  view  must  be  taken  in  respect  to  their  claim  for 
short  measure  in  the  goods  consigned.  If  there  was  such  a  de- 
ficiency, the  burden  of  proving  the  fact  was  upon  them. 

But  I  do  not  agree  with  the  referee  in  his  conclusion  upon 
the  facts  found,  that  the  plaintiffs  are  entitled  to  recover  back 
the  commissions  which  they  have  heretofore  allowed  and  paid 
to  the  defendants  upon  the  sales  made,  and  which  have  been 
actually  earned  under  the  agreement.  I  can  find  no  precedent 
for  such  a  recovery,  nor  am  I  able  to  perceive  that  it  rests  upon 
any  established  legal  principle. 


NEW  YOEK— JANUARY,   1862.  193 

The  Boston  Carpet  Company  v.  Journeay. 

The  rule  undoubtedly  is,  that  where  a  factor,  agent  or  broker, 
misconducts  himself  in  the  business  of  his  agency,  so  that  his 
services  have  not,  by  reason  of  his  misconduct,  negligence,  or 
fraud,  been  of  any  benefit  to  his  principal,  or  have  not  proved 
as  beneficial  as  they  otherwise  would  but  for  his  misconduct, 
he  forfeits  his  right  to  compensation. 

One  of  the  earliest  cases  upoH  the  subject  is  White  v.  Lady 
Lincoln,  8  Yesey,  363,  where  it  appeared  that  the  agent  kept 
his  accounts  so  loosely  that  the  principal  was  unable  to  ascer- 
tain what  amount  of  moneys  belonging  to  him  had  actually 
been  collected  and  received  by  his  agent.  LORD  CHANCELLOR 
ELDON  then  said,  that  the  Court  must,  for  the  safety  of  man- 
kind, lay  down  a  rule  not  to  be  departed  from  only  upon  very 
special  circumstances,  that  a  man  standing  in  the  relation  of 
agent,  is  bound  to  keep  regular  accounts  of  his  transactions  on 
behalf  of  his  employer,  not  only  of  his  payments,  as  in  that 
case  was  done,  but  of  his  receipts ;  and  unless  he  did  so,  he 
should  not  be  permitted  to  make  a  demand  for  his  services  in 
that  relation. 

This  rule  not  only  commends  itself,  but  has  frequently  been 
adverted  to  and  applied,  so  that  it  is  now  settled  that  an  agent 
must  not  only  discharge  all  the  duties  of  his  employment  with 
proper  skill  and  fidelity,  but  in  addition,  must  keep  accounts 
of  his  transactions,  and  of  all  receipts  and  payments  relating 
to  the  business  entrusted  to  him  (Farnsworth  v.  Gerrard  ; 
3  Camp.  38 ;  Sea  v.  Carpenter,  16  Ohio,  412 ;  Montrion  v . 
Jefferys,  1  Car.  &  Payne,  113  ;  White  v.  Chapman,  1  Starkie, 
113;  Lady  Ormond  v.  Hutchinson,  13  Vesey,  53;  Dodge  v. 
Tileston,  12  Pick.  328) ;  and  his  neglect  in  this  respect,  where- 
by his  principal  sustains  injury,  will  deprive  him  of  any  claim 
for  commissions  or  compensation.  Chitty  on  Contracts,  548  ; 
Paley  on  Agency,  105  ;  1  Parsons  on  Contracts,  84. 

But  ia  the  present  case,  upon  the  facts  found  by  the  referee, 
neither  of  those  rules  can  be  invoked  in  support  of  the  judg- 
ment appealed  from.  It  is  not  claimed  that  the  defendants  did 
not  keep  accurate  accounts ;  indeed,  on  the  contrary,  the- 
recovery  here  is  based  upon  the  entries  in  their  books,  by 
which  it  appears  that  the  sales  actually  made  by  them  of  the- 
carpets  consigned,  were  at  higher  rates  than  they  were 
returned  at  in  their  accounts  rendered  to  the  plaintiffs ;  and  to 
13 


194  COURT  OF  COMMON  PLEAS. 

Rogers  v.  Rogers. 

the  extent  of  this  difference  the  plaintiffs  are  clearly  entitled 
to  judgment  as  for  moneys  belonging  to  them  in  the  hands  of 
the  defendants.  But  they  cannot  go  farther,  and  recover  back 
as  a  penalty  for  rendering  those  deceptive  accounts  the  com- 
misions  which  they  have  heretofore  paid  and  allowed  the  de- 
fendants, for  the  services  they  have  performed  in  and  about 
their  business.  . 

The  judgment  should,  for  these  reasons,  be  reversed,  as  to 
the  one  thousand  three  hundred  and  twenty-five  dollars  and 
thirty-eight  cents,  being  the  amount  of  the  commissions,  with 
interest,  and  affirmed  for  the  residue,  without  costs  of  this 
appeal  to  either  party. 

Ordered  accordingly. 


JOHN  KOGERS  v.  JOHN  H.  ROGERS. 

Where  a  claim  has  been  interposed  in  a  former  action,  by  way  of  set  off,  and 
has  been  duly  passed  upon  in  such  action,  it  is  res  adjudicate,  and  the  former 
action  is  a  bar  to  a  new  action  by  the  defendant  against  the  plaintiff  in  the 
former  suit. 

Husband  and  wife  cannot  be  examined  either  for  or  against  each  other,  except 
in  cases  where  they  are  parties  to  the  suit. 

The  facts  in  the  case  are  sufficiently  stated  in  the  opinion  of 
the  Court 

BY  THE  COURT — HILTON,  J. — This  judgment  must  be  reversed, 
for  two  reasons.  1st.  The  defendant  fully  established  his  de- 
fence of  prior  adjudication; and  2d.  The  Justice  erred  in  per- 
mitting the  wile  of  the  plaintiff  to  be  examined  as  a  witness 
upon  the  trial. 

It  was  conclusively  shown  that  the  claim  here  sued  on  was 
interposed  by  way  of  set  off,  in  defence  to  a  former  action 


NEW  YORK—MARCH,  1862.  195 

Rogers  v.  Rogers. 

brought  before  the  same  Justice  between  the  same  parties,  ex- 
cept that  they  occupied  the  opposite  position  of  plaintiff  and 
defendant,  and  in  which  the  Justice  gave  judgment  for  the  de- 
fendant here,  but  the  plaintiff  in  that  action,  rejecting  and  dis- 
allowing the  set-off. 

The  reason  for  the  rejection  does  not  appear  either  in  the 
return  in  that  case  nor  in  this,  but  appellant's  counsel  suggests, 
that  it  was  because  the  bill  appeared  to  be  on  its  face  due  and 
owing  to  the  plaintiff  in  this  action,  as  "  agent ;"  but  however 
this  may  have  been,  it  cannot  be  regarded  by  us  on  appeal. 
The  evidence  in  the  former  case  showed  that  the  set  off  was 
actually  due  to  the  party  as  principal,  and  the  only  ground  for 
its  disallowance  then  would  seem  from  the  return  to  be,  that 
the  Justice  gave  greater  credit  to  the  testimony  of  the  plaintiff 
in  that  suit,  in  opposition  to  the  claim  by  way  of  set  off,  than 
he  did  to  that  of  the  defendant  in  support  of  it. 

But  apart  from  this,  a  fatal  objection  to  the  judgment  con- 
sists in  the  admission  of  the  wife  of  the  plaintiff  as  a  witness 
upon  the  trial.  The  law  has  not  changed  the  former  rule 
which  prevented  a  husband  or  wife  being  examined  as  a  wit- 
ness, either  for  or  against  each  other,  except  in  cases  where 
they  are  parties  to  the  suit.  Barton  v.  Gledhill,  12  Abbott, 
246  ;  Hasbrouck  v.  Vandervoort,  5  Seld.  153.  This  rule  was  not 
founded  upon  the  ground  of  a  pecuniary  interest  in  the  event 
of  the  suit,  and  therefore  is  not  obviated  by  sec.  398  of  the 
Code,  which  declares  that  no  person  offered  as  a  witness  shall 
be  excluded  by  reason  of  his  interest  in  the  event  of  the  action, 
but  rests  upon  the  nature  of  the  marriage  relation  and  the  dis- 
abilities it  imposes,  and  owes  its  origin  to  principles  of  public 
policy.  Here  the  wife  was  not  a  party  to  the  suit,  and  there- 
fore was  not  a  competent  witness,  either  for  or  against  her  hus- 
band, and  should  have  been  excluded.  Code,  sec.  399. 

Judgment  reversed. 


196  COURT  OF  COMMON  PLEAS. 


Fox  v.  Duff. 


MAET  Fox  v.  HENBT  DUFF. 

A  married  woman  who  hires  premises  in  her  own  name  has  an  interest 
therein  within  the  meaning  of  Laws  of  1849,  chap.  375,  p.  528,  and  may  main- 
tain an  action  for  a  trespass  thereon  in  her  own  name. 

APPEAL  by  the  defendant  from  a  judgment  of  the  Fifth  Dis- 
trict Court 

The  defendant  was  the  owner  of  certain  premises  in  Mott 
street,  in  this  city,  which  he  had  rented  to  the  plaintiff,  and 
received  the  rent  for  up  to  the  1st  of  May,  1861.  On  the  1st 
day  of  May,  1861,  and  while  the  plaintiff  was  absent,  the  de- 
fendant broke  the  door  open  with  an  axe,  took  out  the  win- 
clows,  and  removed  the  furniture  of  the  plaintiff  from  the  pre- 
mises, and  threatened  to  injure  the  plaintiff. 

The  plaintiff  brought  action  for  the  trespass  committed. 

It  appeared  on  the  trial  that  the  plaintiff  was  a  married 
woman  ;  that  her  husband  went  to  California  before  she  hired 
the  premises  in  question,  and  that  the  rent  therefor  was  paid 
by  her  out  of  her  own  earnings. 

The  defendant's  counsel  moved  to  dismiss  the  complaint,  on 
the  grounds  that  the  plaintiff,  being  a  married  woman,  could 
not  maintain  the  action,  and  that  it  should  have  been  brought 
by  her  husband. 

The  motion  was  denied,  and  the  Justice  rendered  judgment 
for  the  plaintiff  for  seventy-five  dollars  damages  besides  costs. 

Robert  W.  Andrews,  for  appellant. 
John  Anderson,  Jr.,  for  respondent. 

BY  THE  COURT. — HILTON,  J. — The  plaintiff,  although  a  mar- 
ried woman,  could  acquire  and  hold  an  interest  in  lands  the 
same  as  if  she  were  unmarried  (see  Laws  1849,  p.  528).  She 
acquired  such  an  interest  by  virtue  of  the  letting  to  her  by  the 
defendant  of  the  premises  in  question,  in  consideration  of  pay- 


NEW    YORK— MARCH,   1862.  197 

Gilhooly  v.  The  New  York  and  Savannah  Steam  Navigation  Company. 

ing  to  him  the  rent  therefor  in  advance,  and  her  possession 
could  not  be  lawfully  disturbed  until  the  expiration  of  her 
term.  The  defendant  by  entering  upon  the  premises  in  the 
manner  described  by  the  eyidence,  and  threatening  her  with 
personal  violence,  committed  a  malicious  trespass,  which  we 
think  fully  warranted  the  Justice  in  punishing  Mm  to  the  ex- 
tent of  the  damages  awarded. 

The  action  was  also  properly  brought  in  her  own  name,  with- 
out giving  her  husband  as  a  party  plaintiff,  as  it  concerned  her 
separate  property,  and  in  respect  t6  which  she  was  competent 
to  sue  or  be  sued  alone.  Darby  v.  Callaghan,  16  N.  Y.  Rep. 
71 ;  Code,  §  114,  sub.  1 ;  Laws  1860,  p.  158,  §  7 ;  Vincent  v. 
JSuhler,  Com.  Pleas,  Gen.  T.  Aug.  1861.* 

Judgment  affirmed. 


THOMAS  GILHOOLY  v.  THE  NEW  YOKK  and  SAVANNAH  STEAM 
NAVIGATION  COMPANY. 

A  voyage  from  one  seaport  to  another  is  not  completed  at  the  quarantine  of 
the  port  of  destination  ;  and  unless  excused  by  special  agreement,  or  by  the 
health  laws  preventing  intercourse  with  the  city,  the  vessel  is  bound  to 
carry  a  passenger  and  his  baggage  to  the  point  agreed  on. 

The  defendants  engaged  to  carry  the  plaintiff  and  his  baggage  from  Savannah 
to  New  York  city.  The  plaintiff  being  ill,  left  the  vessel  at  the  quarantine 
of  the  latter  city,  leaving  his  baggage  on  board  the  vessel,  which  reached 
the  city, — Held,  that  in  the  absence  of  any  offer  on  defendants'  part  to  de- 
liver the  baggage  at  the  quarantine,  they  were  bound  to  deliver  it  at  the  end 
of  the  journey,  when  called  for. 

The  delay  of  the  owner  to  call  for  the  baggage  for  several  days  after  its  arrival 
at  the  point  of  destination,  does  not  release  the  carrier  from  his  obligation 
to  deliver  it  to  him  on  demand. 


•  Ante,  p.  166. 


19S  COURT    OF  COMMON    PLEAS. 

Gilhooly  v.  The  New  York  and  Savannah  Steam  Navigation  Company. 

The  demand  must  be  made,  however,  within  a  reasonable  time,  and  what  is  a 
reasonable  time,  is,  in  all  cases,  a  question  of  fact,  and  the  finding  of  the 
jury  on  that  question  will  not  be  disturbed. 

APPEAL  by  the  defendants  from,  a  judgment  of  the  Marine 
Court  at  General  Term. 

The  plaintiff  took  passage  in  the  defendants'  steamship  at 
Savannah,  Georgia,  for  the  city  of  New  York.  The  receipt 
given  at  the  time  he  purchased  his  ticket  is  as  follows  : 

k<  STEAM  SHIP  ALABAMA, 

SAVANNAH,  Sept.  13rfA,  1858. 

Eeceived  fifteen  dollars  for  the  passage  of  Thomas  Gilhooly, 
from  Savannah  to  New  York,  per  steamship  Alabama,  to  sail 
(unless  prevented  by  some  unforeseen  occurrence),  on  Satur- 
day, the  15th  day  of  September,  1858,  at  4  o'clock,  P.  M. 

J.  JB.  RIPLEY,  for  Agents. 

This  receipt  must  be  given  up  when  called  for  by  the  clerk. 
Boxes  or  trunks  not  allowed  in  the  cabins  or  state  rooms. 
Baggage  should  be  marked  with  the  number  of  the  passenger's 
room.  If  valuable  packages  are  sent  on  board,  the  value  must 
be  declared  and  paid  for  accordingly.  The  ship  will  not  be 
accountable  for  baggage  or  goods  unless  bills  of  lading  ar,e 
regularly  signed.  Dogs  will  be  charged  five  dollars  each,  and 
in  no  case  allowed  in  the  cabin  or  state  rooms. 

GEOKGK  MrrcHELL." 

When  the  vessel  reached  the  quarantine  in  the  harbor  of 
New  York,  the  plaintiff,  being  ill,  was  ordered  ashore  by  the 
quarantine  officers,  where  he  remained  for  three  days.  On 
reaching  New  York  city,  he  went  to  the  office  of  the  steamer 
for  his  trunk,  containing  his  wearing  apparel ;  the  officer  in 
charge  said  he  knew  nothing  of  it.  The  plaintiff  then  waited 
several  days  until  the  vessel  returned  to  New  York,  and  made 
further  inquiries.  He  then  brought  his  action  to  recover  the 
value  of  his  trunk. 

Judgment  was  rendered  for  the  plaintiff,  and  the  defendants 
appealed  to  this  court. 

Beebe,  Dean  <&  Donohue,  for  appellants. 
Man  &  Parsons,  for  respondent. 


NEW  YORK— MARCH,  1862.  199 

Gilhooly  v.  The  New  York  and  Savannah  Steam  Navigation  Company. 

. . -TT 

BY  THE  COURT. — BKADY,  J. — The  plaintiff  took  passage  on 
board  of  the  defendants'  steamed  Alabama,  from  Savannah  to 
New  York,  and  left  the  former  place  on  the  15th  September, 
1858.  He  was  sick  and  put  ashore  at  quarantine  when  the 
vessel  reached  that  place.  His  trunk  was  taken  to  New  York 
and  never  delivered  to  him.  The  defendants  set  up  that  it  was 
delivered  to  him  at  New  York,  but  gave  no  evidence  to  estab- 
lish the  truth  of  that  allegation,  and  proved  nothing  to  relieve 
themselves  from  liability.  They  were  bound  to  deliver  to  the 
plaintiff  his  trunk  at  the  end  of  the  journey.  They  failed  to 
do  so.  If  the  voyage  ended  at  quarantine,  then  they  were 
bound  to  deliver  the  trunk  to  the  plaintiff  when  put  ashore  at 
that  point.  If  they  had  offered  to  deliver  it  there,  and  the 
plaintiff  had  refused  to  take  it,  it  might  be  regarded  as  carried 
from  that  place  at  the  risk  of  the  owner,  their  duty  having 
been  performed.  There  was  no  evidence,  however,  showing 
that  the  plaintiff  knew  or  was  advised  that  the  voyage  of  the 
defendants'  steamer  had  ended  at  quarantine  during  the  season 
of  the  year  in  which  he  travelled  in  one  of  them.  The  evi- 
dence, on  the  contrary,  shows  that  he  paid  for  a  passage  to 
the  city  of  New  York,  and  to  that  place  the  defendants  were 
bound  to  take  him  and  his  baggage,  unless  excused  by  the 
•  health  laws  regulating  their  intercourse  with  that  city.  The 
omission  of  the  plaintiff  to  call  for  his  trunk  for  several  days 
after  the  steamer  arrived,  did  not  release  the  defendants  from 
their  obligation  to  deliver  it  to  him.  The  defendants  were 
bound  to  deliver,  and  the  whole  duty  rested  on  them.  Hol- 
lester  v.  Nowlen,  19  Wend.  234 ;  Bowman  v.  Teal,  23  Wend. 
306  ;  Cole  v.  Goodwin,  19  Wend.  251. 

The  arrival  of  the  steamer  at  its  place  of  destination  with  the 
baggage  will  not  discharge  the  carrier  until  its  delivery  to  the 
owner.  It  must  be  demanded,  however,  within  a  reasonable 
time.  Powell  v.  Myers,  26  Wend.  591.  What  is  a  reason- 
able time  is,  in  all  cases,  a  question  of  fact,  and  the  finding  on 
that  question  in  favor  of  the  plaintiff  cannot  be  disturbed. 

The  judgment  should  be  affirmed. 


200  COURT  OF  COMMON  PLEAS. 


Soloman  v.  Neidig. 


JOSEPH  SOLOMAN  and  LEOPOLD  SOLOMAN  v.  HENRY  NEIDIG  and 
CHARLES  SAAB, 

The  plaintiffs  sold  to  N.  and  S.  jointly,  a  quantity  of  goods,  to  be  paid  for  in 
cash,  on  delivery,  or  by  the  note  of  8.  at  three  months,  indorsed  by  N. 
.The  plaintiffs  delivered  part  of  the  goods,  but  refused  to  deliver  the  resi- 
due, on  the  ground  that  8.  had  failed.  Plaintiff  made  no  tender  of  the 
goods  nor  demand  for  either  cash  or  the  note,  but  brought  his  action  for 
the  value  of  the  goods  before  the  expiration  of  the  three  months. 

Held, — that  a  motion  for  a  nonsuit  should  have  been  granted. 

1st.  The  contract  being  an  entirety,  no  recovery  could  be  had  until  the 
whole  of  the  goods  were  delivered. 

2.  The  insolvency  of  one  of  the  purchasers  was  no  excuse  for  the  plain- 
tiffs neglect  to  tender  delivery  to  the  other,  and  make  the  election  either  to 
take  the  note  or  cash. 

'*  '       "  .    •  .     i.       )         !        7.4  "'    .*31i;')t 

APPEAL  by  defendants  from  a  judgment  entered  at  the  Trial 
Term  on  the  verdict  of  a  jury. 
The  facts  fully  appear  in  the  opinion  of  the  Court. 

Xockwood  &  Overfield,  for  appellants. 
Fincke  &  Lapaugh,  for  respondents. 

BY  THE  COURT. — BRADY,  J. — The  defendants  purchased  from 
the  plaintiffs  about  three  hundred  dollars'  worth  of  bird  cages. 
They  were  to  be  delivered  at  the  store  of  the  defendants,  or 
one  of  them  in  Broadway,  and  were  to  be  paid  for  in  cash,  five 
per  cent,  off,  or  by  the  note  of  the  defendant  Saas,  at  three 
months,  endorsed  by  the  defendant  Neidig.  The  plaintiffs  deliv- 
ered about  two  hundred  and  fifty-eight  dollars  worth  of  the  goods, 
but  did  not  deliver  the  balance  "  because  the  defendants  had 
failed — one  of  them — and  there  was  an  assignee's  sale  at  the 
store."  The  note  was  not  demanded  of  either  of  the  defen- 
dants, nor  was  any  application  made  to  either  of  them  for  the 
cash  before  suit  brought.  It  was  concluded  that  the  three 
months'  credit  to  which  the  defendants  would  have  been  en- 


NEW  YOEK— MAKCH,  1862.  201 

Soloman  v.  Neidig. 

titled,  had  the  note  been  elected,  had  not  expired  when  the 
action  was  commenced.  On  these  facts,  the  defendants'  coun- 
sel moved  to  dismiss  the  complaint,  upon  the  grounds, 
First.  That  the  three  months'  credit  had  not  expired,  and 
Secondly,  "  because  the  plaintiffs  had  proved  but  one  contract 
for  the  sale  and  delivery  of  goods,  as  an  entirety,  of  which 
goods  a  part  only  had  been  delivered,  although  it  appeared 
that  one  of  the  defendants  was  solvent. 

The  Judge  denied  the  motion,  and  exception  was  taken. 
The  exception  was  well  taken.  The  contract  was  an  entirety, 
and  under  the  well-settled  rule  in  this  State,  the  plaintiffs  were 
not  entitled  to  a  recovery  until  the  whole  of  the  goods  were 
delivered.  Champlain  v.  Rowley,  13  Wend.  258 ;  18  Id. 
187 ;  Mead  v.  Degolyer,  16  Wend.  632  ;  Page  v.  Ott,  5  Denio, 
406. 

I  am  inclined  to  think  that  if  the  plaintiffs  had  dealt  with 
the  defendants  as  copartners,  although  they  were  not  in  fact, 
that  the  failure  of  Saas  would  have  excused  a  further  per- 
formance of  the  contract  on  their  part.  The  plaintiffs  had 
the  right  to  require  cash,  and  they  would,  under  the  circum- 
stances, have  been  justified  in  assuming  that  it  was  not  in  the 
power  of  the  defendants,  a  failure  having  occurred,  to  pay  cash 
for  the  goods  when  the  balance  was  delivered.  The  plaintiff  did 
not  deal  with  them  as  copartners,  however.  The  elder  Solo- 
man  knew  that  the  defendants  had  done  business  as  copartners 
five  years  before  the  sale,  and  stated  that  the  plaintiffs  "  had 
not  sold  them  any  goods  since  the  dissolution  "  of  their  part- 
nership. And  it  further  appears  that  he  considered  the  propo- 
sition that  Saas  would  give  his  note,  and  Neidig  endorse  it,  in 
payment  for  the  goods  which  form  the  object  of  this  contro- 
versy. The  sale  was  made  to  the  defendants  jointly,  it  is  true, 
but  the  failure  of  one  of  them,  the  other  being  solvent,  did  not 
excuse  the  plaintiff's  from  delivering  the  whole  of  the  mer- 
chandise, and  making  the  election  either  to  take  the  note  or 
cash.  This  was  not  done,  nor  was  there  any  offer  to  deJiver  to 
either  of  the  defendants.  It  is  true  also,  that  when  the  balance 
of  the  purchase  was  taken  to  the  store  in  Broadway,  the 
younger  Soloman  found  an  auction  sale  going  on,  and  saw 
Neidig,  but  he  did  not  communicate  to  him  his  readiness  to  de- 
liver the  goods  or  make  any  demand  for  note  or  money.  Nor 


202  COUKT  OF  COMMON  PLEAS. 

Morris  v.  The  Third  Avenue  Railroad  Company. 

did  he  do  it  at  any  subsequent  time.  If  Neidig,  a  solvent  pur- 
chaser, were  to  be  held  liable,  it  could  only  be  based  upon  a 
compliance  with  the  rules  of  law  establishing  such  liability, 
which  were  not  observed.  A  tender  to  him  would  have  been 
sufficient  to  charge  him  and  to  have  completed  the  obligations 
of  the  plaintiffs  to  both  defendants.  Until  the  plaintiffs  per- 
formed their  contract,  they  were  not  in  a  situation  to  demand 
either  note  or  money.  I  think  the  evidence  discloses  circum- 
stances which  render  it  desirable  that  this  judgment  should 
not  be  disturbed,  but  I  cannot  discover  any  rule  of  law  by 
which  it  can  be  upheld. 

The  judgment  must  be  reversed. 


ADA  M.  MORRIS  v.  THE  THIRD  ATENTJE  KAILEOAD  COMPANY. 


Where  carriers  of  passengers,  by  a  general  regulation,  make  it  the  dnty  of 
their  agents  to  take  charge  of  property  inadvertently  left  in  their  cars,  and 
provide  at  their  depot  a  place  for  its  safe  keeping,  where  the  owner  may 
apply  for  it,  it  must  be  deemed  a  part  of  their  business  to  take  charge  of 
such  articles  and  keep  them  for  the  passenger. 

And  although  they  do  not  engage  for  the  carriage  of  luggage,  and  do  not 
incur  respecting  it  the  extraordinary  liability  of  common  carriers,  yet  the 
existence  of  the  regulation  shows  that  they  undertake,  as  incidental  to  their 
business,  to  take  charge  of  it,  if  left  in  their  care,  when  the  fact  is  brought 
to  their  knowledge ;  and  the  specific  compensation  which  they  receive  for 
the  carriage  of  tho  passenger  is  sufficient  to  constitute  them  bailees  for  hire, 
while  the  property  remains  in  their  custody. 

The  plaintiff  left  a  satchel  in  defendants'  car,  which  the  conductor  took  charge 
of,  and  upon  the  return-trip  placed  it  in  the  care  of  the  receiver  of  the  road, 
by  whom  it  was  delivered  to  a  person  who  had  no  right  or  claim  to  it, — 
Held,  that  the  defendants  were  liable  as  for  a  conversion. 


NEW  YORK—MAY,  1862.  203 

Morris  v.  The  Third  Avenue  Railroad  Company. 

Where  property  is  not  put  in  a  bailee's  charge  by  the  owner,  but  comes  into 
his  possession  through  the  owner's  neglect,  and  where  he  may  not  know  to 
whom  it  belongs,  or  by  whom  it  was  left,  he  should  not  be  held  responsible 
for  delivering  it  to  the  wrong  person,  if  he  has  exercised  all  the  care  and 
vigilance  that  could  reasonably  be  expected  of  him  under  the  circum- 
stances. 

The  question  of  care  and  vigilance  is  one  of  fact  for  the  tribunal  which  tries 
the  case,  and  its  finding  will  not  ordinarily  be  disturbed  on  appeal. 

APPEAL  by  the  defendant  from  a  judgment  of  the  Marine 
Court  at  General  Term. 

The  plaintiff  brought  action  to  recover  the  value  of  a  satchel 
and  contents  "  casually  lost  by  her  "  in  one  of  the  cars  of  the 
defendants.  The  conductor  of  the  car  took  care  of  the  article, 
and  on  reaching  the  end  of  his  route,  left  it  with  another  em- 
ployee of  the  defendants,  for  safe  keeping,  in  a  room  provided 
for  that  purpose.  .  i 

The  latter  employee  was,  shortly  after  the  deposit,  applied 
to  for  the  satchel,  by  a  person  who  described  it,  stating  it  to 
have  been  lost  by  being  accidentally  left  in  a  car,  and  claim- 
ing it  as  belonging  to  her  mistress.  The  receiver  gave  the  pro- 
perty to  the  applicant. 

Judgment  was  rendered  for  the  plaintiff,  which  being 
affirmed  by  the  General  Term,  the  defendants  appealed  to  this 
Court. 

Robert  B.  Potter ,  for  appellants. 

I.  The  defendants  are  not  carriers  of  Inggage.  The  defen- 
dants are  a  peculiar  corporation  in  their  objects  ;  being  simple 
passenger  earners — a  public  conveyance  in  a  large  city,  to  aid 
foot  passengers  in  going  great  distances,  and  there  is  no  proof 
that  the  defendants  are  carriers  of  luggage.  T,hey  are  not  in 
fact.  (1.)  The  liability  of  other  passenger  carriers  for  lug- 
gage, such  as  hackney  coachmen,  stage  coach  proprietors,  and 
the  like,  does  not  arise  upon  the  occupation  itself,  but  it  haa 
grown  up  into  recognition  because  the  public  has  become 
accustomed  with  the  owners'  assent  to  carry  their  baggage  with 
them  in  such  vehicles.  Defendants'  cars  are  not  run  for  the 
travelling  public  at  large,  but  for  citizens  in  their  daily  local 


204  COURT  OF  COMMON  PLEAS.' 

Morris  v.  The  Third  Avenue  Railroad  Company. 

business.  The  fare  is  fixed  and  arbitrary,  and  does  not  include 
the  carrying  of  luggage,  which,  if  carried  occasionally,  is  inva- 
riably charged  for.  (2.)  The  defendants  performed  their  con- 
tract with  the  plaintiff,  and  became  dismissed  of  all  obliga- 
tion when  they  discharged  her  at  her  own  request  at  Grand 
street,  in  safety.  She  left  the  bag.  All  her  action  was  volun- 
tary. She  never  delivered  it  to  the  defendants,  and  it  was 
never  in  their  custody,  with  her  assent  or  by  her  action.  This 
is  necessary  to  create  liability.  Angell  on  Com.  Car.  113; 
Tower  v.  U.  <&  S.  R.  R.  Co.,  7  Hill,  47. 

II.  The  defendants'  negligence  did  not  consist  in  finding  or 
in  the  taking  to  the  Receiver,  but  in  the  delivery  to  the  woman. 
The  action  is  trover,  and  the  gist  is  the  conversion.  There  was 
no  conversion  until  the  delivery  to  the  woman ;  the  question 
simply  is  whether  the  delivery,  under  the  circumstances,  consti- 
tutes negligence.  The  error  lay  in  the  original  carelessness  of 
the  owner.  The  act  was  the  act  of  the  conductor  and  receiver.  It 
is  not  shown  that  the  railroad  assumed  to  take  or  to  return  the 
property.  The  conversion,  if  any,  was  by  those  two  parties. 
Hiblard  v.  N.  Y.  &  E.  R.  R.  Co.,  15  N.  Y.  R.  455. 

E.  L.  Fancher,  for  respondent. 

As  to  the  case  on  the  merits,  it  is  identical  in  all  principles 
with  that  of  PoweU  v.  Myers,  26  Wend.  591 ;  where  the 
doctrine  is  established,  that "  common  carriers  of  passengers  and 
baggage  are  liable  for  the  latter  until  its  delivery  to  the  owner ; 
its  delivery  on  a  forged  order  will  not  discharge  them  ;"  and 
the  circumstance  that  no  compensation  is  paid  for  the  trans- 
portation of  the  baggage,  is  not  material  ;  the  passenger  fare 
includes  it.  See  Wend.  594.  And  the  defendants  are  also 
liable  in  trover.  Packard  v.  Getman,  4  Wend.  613. 

BY  THE  COURT. — DALY,  F.  J. — The  evidence  sufficiently 
shows  that  it  formed  a  part  of  the  business  of  the  defendants  to 
take  charge  of  articles  left  inadvertently  in  the  cars  by  passen- 
gers ;  and  that  by  their  custom  all  articles  so  found  were  taken 
by  the  conductors  to  the  receiver's  office,  in  Sixty-fifth  street, 
and  placed  in  the  care  of  that  officer.  This  was  an  arrange- 
ment for  the  benefit  of  passengers,  and  though  the  defendants 


NEW   YOKK— MAY,   1862.  205 

Morris  v.  The  Third  Avenue  Railroad  Company. 

\ 

may  have  received  no  compensation  for  it,  other  than  that 
which  is  included  in  the  fare  charged  for  the  conveyance  of  the 
passenger,  they  must,  in  taking  charge  of  property  so  left,  be 
looked  upon  in  the  light  of  bailees  for  hire,  who  are  bound  to 
the  exercise  of  ordinary  care  and  diligence.  Powell  v.  Myers, 
26  Wend.  591 ;  Town  v.  Utlca-  &  Schenectady  R.  E.  Co.,  7 
Hill,  47 ;  Angel  on  Carriers,  §§  75,  131,  112,  302 ;  Edwards 
on  Bailments,  35  36. 

This  is  not  a  gratuitous  bailment.  It  is  a  matter  of  ordinary 
convenience  for  passengers  to  carry  with  them  light  and  port- 
able articles,  and  necessarily  of  very  common  occurrence  that 
they  should  occasionally  leave  such  articles  behind  them  on 
quitting  the  cars.  That  the  defendants  make  it  the  duty  of 
their  conductors  to  take  charge  of  property  so  left,  and  that 
they  provide  a  place  for  its  safe  keeping,  where  the  owner  may 
apply  for  it,  is  an  arrangement  which  materially  enhances  the 
security  of  this  mode  of  travel,  and  where  it  is  adopted,  as  in 
this  case,  by  a  general  regulation,  it  must  be  deemed  as  much  a 
part  of  the  railroad  company's  business  as  the  carriage  of  the  pas- 
senger. They  do  not  engage  for  the  carriage  of  property  of 
the  kind,  and  do  not  incur  respecting  it  the  extraordinary 
liability  which  the  law  imposes  upon  common  carriers,  but  the 
existence  of  the  regulation  they  have  adopted,  shows  that  they 
undertake,  as  incidental  to  their  business,  to  take  charge  of  it, 
if  left  in  the  cars,  when  the  fact  is  brought  to  their  knowledge, 
and  the  specific  compensation  which  they  receive  for  the  car- 
riage of  the  passenger,  is  sufficient  to  constitute  them  bailees 
for  hire  while  the  property  remains  in  their  custody. 

The  plaintiff  in  the  case  left  her  satchel  in  the  car,  contain- 
ing articles  valued  at  one  hundred  dollars.  The  conductor's 
attention  being  called  to  the  fact,  he  took  charge  of  it,  and 
upon  the  return  trip  placed  it  in  the  care  of  the  receiver,  by 
whom  it  was  delivered  to  a  person  who  had  no  right  or  claim 
to  it. 

If  a  bailee  for  hire  deliver  a  package  by  mistake  to  the 
wrong  person,  it  is  a  conversion,  because  it  is  giving  the 
dominion  over  the  goods  to  another,  (Youle  v.  Harbattle, 
Peake  N.  P.  C.  49;  Wyld  v.  Pickfard,  8  Mees.  &  W.  461 ; 
Packard  v.  Getman,  4  WendL  613 ;)  but  in  a  case  like  this, 
where  the  property  is  not  put  in  the  bailee's  charge  by  the 


206  COURT  OF  COMMON  PLEAS. 

Morris  v.  The  Third  Avenue  Railroad  Company. 

owner,  where  it  comes  into  his  possession  through  the  owner's 
neglect,  and  where  he  may  not  know  to  whom  it  belongs  or  by 
whom  it  was  left,  he  should  not  be  held  responsible  for  deliver- 
ing it  to  a  wrong  person,  if  he  has  exercised  all  the  care  and 
vigilance  that  could  reasonably  be  expected  of  him  under  the 
circumstances. 

The  receiver  testified  that  about  fifteen  minutes  after  the 
satchel  was  placed  in  his  charge,  a  respectable  looking  Ger- 
man woman  came  into  the  office  and  claimed  it,  saying  that 
she  had  been  sent  there  by  her  mistress.  She  said  the  handle 
was  a  string,  a  brown  ribbon,  and  that  the  satchel  was  a  brown 
leather  one  ;  that  he  asked  her  as  to  its  contents,  and  that  she 
said  that  there  was  a  brush  and  comb,  and  other  articles,  the 
comb  lying  on  the  top,  two  or  three  bottles,  and  articles  be- 
longing to  a  lady,  and  that  there  was  clothing.  He  stated  that 
the  brush  and  bottles  corresponded  with  her  description,  and 
that  he  saw  what  appeared  to  be  ladies'  clothing  in  the  bag. 
That  when  he  produced  it,  she  said  yes,  bowed,  and  extended 
her  hand  for  it ;  that  he  meant  to  be  careful,  and  that  her  man- 
ner made  him  think  that  she  told  the  truth. 

In  cases  of  this  nature  it  is  generally  left  to  a  jury  to  say 
•whether  the  circumstances  were  such  as  to  justify  the  bailee  in 
parting  with  the  property.  The  facts  relied  upon  to  show  the 
existence  or  the  want  of  diligence,  may,  even  where  there  is 
no  conflict,  be  regarded  differently  by  different  persons  ;  they 
maybe  influenced  in  their  bearing  upon  each  other  by  the  con- 
sideration of  a  variety  of  circumstances,  and  when  the  tribunal, 
therefore,  before  whom  the  case  was  laid  in  detail,  and  before 
whom  the  witnesses  were  examined,  conies  to  the  conclusion 
that  sufficient  care  was  not  exercised,  appellate  courts,  except 
in  a  very  clear  case,  should  not  interfere.  There  are,  in  many 
instances,  a  discretion  and  judgment  to  be  exercised  as  to  the 
bearing  and  relation  of  facts,  which  it  is  more  appropriate  to 
leave  to  the  tribunal  that  tried  the  cause,  than  to  the  one  that 
sits  in  review,  and  impressions  as  to  the  value  of  testimony  and 
the  consideration  that  ought  to  be  given  to  particular  facts,  de- 
rived from  the  manner  of  witnesses  and  other  surrounding  cir- 
cumstances occurring  at  the  trial,  that  have,  and  should  have 
weight,  of  which  the  appellate  tribunal  have  necessarily  no 
knowledge.  Questions,  therefore,  of  negligence,  the  exercise 


NEW    YORK— MAY,  1862.  20T 

Morris  v.  The  Third  Avenue  Railroad  Company. 

or  the  want  of  diligence,  overruling,  as  they  usually  do,  the 
consideration  of  many  circumstances,  should  be  left  to  the  tribu- 
nal that  tried  the  cause,  except  where  the  error  is  very  palpa- 
ble. Oldfield  v.  N.  T.  &  Harlem  R.  R.,  3  E.  D.  Smith, 
106 ;  Curtis  v.  Rochester,  &c.,  Railroad  Co.,  20  Barb.  282  ; 
Stover  v.  G-ower,  6  Shep.  [Me.]  R.  174  ;  Story  v.  Bailments, 
§§  11,  12,  13,  14 ;  Angel  on  Carriers,  §§  27,  51. 

The  Justice  has  found  in  the  case  that  there  was  a  want  of 
proper  care  on  the  part  of  the  defendants'  agent,  and  it  pre- 
sents, in  my  judgment,  one  of  the  class  of  cases  in  which  hia 
conclusion  should  not  be  interfered  with.     Property  left  like 
this,  in  a  car  in  which  there  are  other  passengers,  is  liable  to 
just  such  attempts  on  the  part  of  dishonest  persons,  to 'obtain 
it,  as  occurred  in  this  case.    The  defendants'  agent  had  it  in 
his  power,  before  the  satchel  was  shown,  to  require  such  proofs 
of  its  identity  as   could  be  furnished  only  by  a  person  tho- 
roughly acquainted  with  its  contents.     The  outward  descrip- 
tion of  it  might  be  given  by  any  one  who  had  seen  it  in  the 
cars,  but  a  particular  account  of  what  it  contained  could  be 
supplied  only  by  one  who  knew  what  was  in  it.     It  would  ap- 
pear not  to  have  been  locked,  as  the  receiver  looked  into  it, 
and  this  was  an  additional  reason  for  exercising  greater   cau- 
tion, and  requiring  such  a  statement  of  its  contents  as  would 
reasonably  justify  the  conclusion,  if  given,  that  the  person  ap- 
plying was  entitled  to  it.    The  woman  is  declared  to  have  said 
that  there  was  a  brush  and  comb,  and  the  receiver,  when 
examined  upon  the  direct,  stated  that  the  brush  and  bottles 
corresponded  with  her  description,  but  when  cross-examined, 
he  said  that  he  did  not  see  a  lady's  hair  brush ;  that  the  only 
brush  that  he  saw  was  a  tooth  brush.     The  Justice  assuming 
that  he  believed  the  statement,  may  have  been  of  the  opinion 
that  the  woman  meant,  when  she  spoke  of  a  brush  and  comb, 
to  convey,  from  the  union  of  the  two,  that  it  was  a  hair  brush, 
and  as  the  only  brush  that  the  receiver  saw  was  a  tooth  brush, 
that  that  should  have  awakened  his  suspicion.     But  there  was 
also  evidence  on  the  part  of  the  plaintiff  that  may  have  in- 
duced the  Justice  to  discredit  the  whole  of  that  part  of  the  re- 
ceiver's   statement,   in   which   he    testified   that   the   woman 
identified   articles   contained   in   the  satchel.     He   said   that 
the    brush    and    bottles   corresponded  with    her  description, 


208  COUKT    OF  COMMON    PLEAS. 

Morris  v.  The  Third  Avenue  Railroad  Company. 

having  previously  stated  that  she  mentioned  two  or  three 
bottles. 

Now,  the  plaintiff  testified  as  to  the  contents  of  the  satchel. 
She  swore  that  she  remembered  what  was  in  it,  and  she  pro- 
duced a  copy  of  a  list  of  the  articles  which  it  contained,  made 
out  by  herself  at  the  time  of  the  loss,  and  in  this  list  there  was 
neither  brush,  bottles,  nor  tooth  brush.  These  articles  the 
woman  is  said  to  have  specifically  identified,  while,  according 
to  the  plaintiff's  testimony,  the  satchel  contained  no  articles  of 
the  kind.  There  was,  then,  a  serious  conflict,  and  if  the  Jus- 
tice believed  the  plaintiff's  enumeration  of  the  contents 
to  be  correct,  it  was  calculated  to  throw  discredit  upon  the 
receiver's  statement.  This  officer  says  that  the  woman's  man- 
ner made  him  think  that  she  told  the  truth,  and  the  Justice 
may  have  thought  that  he  relied  rather  upon  that  than  upon 
what  was  within  his  power — such  a  description  of  what  was  in 
the  satchel  as  could  not  in  all  probability  have  been  given  by 
the  dishonest  woman  who  obtained  it.  It  could  easily  have 
been  examined,  and  as  it  was  according  to  the  plaintiff's  testi- 
mony, a  "  little  satchel,"  and  contained  a  number  of  valuable 
articles,  such  as  a  gold  chain,  lava  and  pearl  ear-rings,  a  jew- 
elled bracelet,  expensive  embroidered  handkerchiefs,  pearl 
ornaments,  a  lace  collar,  &c.,  it  would  have  given  very  little 
trouble  to  have  ascertained  what  was  in  it,  and  that  would 
have  tested  at  once  whether  the  woman  knew  what  it  con- 
tained. If  the  receiver  delivered  the  satchel  to  her  without 
any  preliminary  inquiry  as  to  its  contents,  it  was  certainly  a 
•want  of  proper  care.  The  Justice  may  have  been  of  that 
opinion,  and  we  cannot  say,  npon  the  evidence,  that  he 
erred  in  arriving  at  such  a  conclusion.  The  existence  or 
absence  of*  negligence  was  upon  the  evidence  eminently  a 
question  for  him  alone. 

Several  objections  were  made  to  the  introduction  of  testi- 
mony, but  one  of  which  the  defendant  now  relies  on — as 
to  the  court's  allowing  the  plaintiff  to  show  what  the  starter 
Baid  to  her  when  she  went  to  inquire  after  her  satchel. 
It  is  unnecessary  to  discuss  whether  this  was  admissible  or  not. 
It  was  proved  by  the  defendants'  witness  that  the  receiver  had 
the  bag  in  his  custody,  and  the  declarations  or  statements  of 
the  starter  as  to  where  he  had  s^en  it  and  where  it  had  been 


NEW  YORK— MAY,   1862.  209 

Hunt  v.  Singer. 

taken  to,  were  wholly  im material.  The  only  questions  in  the 
case  was  whether  the  receiver  acted  negligently  in  giving  it 
up,  and  its  value,  and  upon  these  questions  this  testimony  could 
have  no  bearing. 

The  judgment  should  be  affirmed. 


POLLY  HUNT  and  GEORGE  W.  HUNT,  Admr.  and  AdmVx. 
of  WALTER  HUNT,  deceased,  v.  ISAAC  SINGER  and  EDWARD 
CLARK. 

Where  a  party  desires  to  rescind  or  abandon  a  contract  because  of  some  alleged 
breach,  the  law  requires  him  to  act  with  due  promptness  in  making  his 
election,  and  he  will  not,  as  a  general  rule,  be  permitted  to  do  so,  when  at 
the  time  of  the  recision,  both  parties  cannot  be  placed  in  the  identical  situa- 
tion, nor  can  stand  upon  the  same  terms  existing  at  the  time  the  contract 
was  made. 

Thus,  where  the  defendants,  who  sought  to  avoid  a  contract  on  the  ground  of 
fraud,  knew  of  the  existence  of  the  fact  of  which  the  fraud  was  alleged,  and 
notwithstanding  such  knowledge,  proceeded  to  complete  their  part  of  the 
contract,  by  which  they  reaped  substantial  advantages,  e.  g.,  in  preventing 
opposition  to  the  extension  of  a  patent  right, — Held,  that  they  would  not  be 
allowed  to  rescind  or  annul  the  contract  on  the  ground  of  the  alleged  fraud. 

APPEAL  by  the  defendants  from  a  judgment  of  the  Marine 
Court  at  General  Term. 

This  action  is  brought  by  Polly  Hunt  and  George  W.  Hunt, 
administratrix  and  administrator  of  Walter  Hunt,  deceased, 
against  Isaac  M.  Singer  and  Edward  Clark,  to  recover  the  sum 
of  one  hundred  dollars,  the  amount  of  an  instalment  alleged  to 
have  become  due  on  the  first  day  of  September,  1860,  under 
and  by  virtue  of  a  contract  made  on  the  3d  day  of  May,  1858, 
between  Walter  Hunt,  since  deceased,  and  the  defendants. 


210  COURT    OF  COMMOX    PLEAS. 

Hunt  v.  Singer. 

By  this  contract  it  was  agreed  that  the  defendants  should 
have  the  exclusive  direction  and  control  of  the  intestate'e 
invention  of  a  sewing  machine,  with  power  to  apply  for  a 
patent,  &c.,  and  in  consideration  thereof,  the  defendants  agreed 
to  pay  to  the  intestate  the  sum  of  one  hundred  dollars  a  month 
•for  every  month  between  May  10,  1858,  and  September  10, 
1860.  These  instalments  were  regularly  paid,  with  the  excep- 
tion of  the  last  one  due,  for  which  this  action  was  brought. 

The  defence  set  up,  and  endeavored  to  be  proved  tvpon  trial 
was,  that  Hunt  had,  prior  to  his  agreement  with  defendants, 
entered  into  a  contract  about  his  sewing  machines  with  John 
"W.  Martin,  in  April,  1857,  more  than  a  year  previous,  which, 
under  "the  third  article  of  his  agreement  with  defendants, 
barred  his  claims  on  them. 

The  third  article  of  the  agreement  was  as  follows  : 

"  That  the  said  party  of  the  first  part  hereby  covenants  and 
agrees  that  he  has  not  executed  any  paper,  or  made  any  con- 
tract which  will  or  may  impair  or  injuriously  affect  the  right 
of  the  said  parties  of  the  second  part  to  completely  direct  all 
the  matters  contained  in  the  last  preceding  articles,  and  the 
stipulations  hereinafter  made  on  the  part  of  the  parties  of  the 
second  part  in  favor  of  the  party  of  the  first  part  are  upon  that 
condition." 
• 

Martin's  contract  was  never  carried  into  practical  operation, 
and  had  been  abandoned,  and  it  was  proved  that  defendants 
knew  of  the  Martin  contract,  and  considered  it  valueless,  and 
with  full  knowledge  of  it  paid  all  the  instalments  which  fell 
due  before  the  renewal  of  Howe's  patent.- 

Judgment  was  rendered  for  the  plaintiffs,  which  was 
affirmed  by  the  General  Term  of  the  Marine  Court.  The 
defendants  appealed  to  this  Court. 

J.  Van  Ness  Zyle,  for  appellants. 
C.  W.  Sandford,  for  respondents. 

BY  THE  COURT. — HILTON,  J. — In  the  contract  of  Walter 
Hunt,  deceased,  with  the  defendants,  he  agreed  that  they 


NEW  YORK— MAY,   1862.  211 

Hunt  v.  Singer. 

should  have  the  exclusive  direction  and  control  of  his  un- 
patented  discoveries  or  inventions  respecting  sewing  machines, 
and  power  to  make  application  for  a  patent,  or  to  apply  to 
Congress  for  a  grant  of  special  privileges,  or  for  some  specific 
compensation  for  the  public  benefits  conferred  by  the  inven- 
tions ;  and  he  covenanted  that  he  had  not  executed  any  paper, 
or  made  any  contract  which  would  or  might  impair,  or  inju- 
riously affect  the  right  of  the  defendants  to  completely  direct 
in  respect  to  such  applications.  In  consideration  of  this  agree- 
ment and  covenant,  the  defendants  agreed  to  make  certain 
monthly  payments  of  one  hundred  dollars  each. 

The  prior  agreement  made  with  Martin  was  evidently  in 
contemplation  of  a  partnership,  by  which  Martin  agreed  to  ad- 
vance an  amount  of  money  for  the  purpose  of  manufacturing 
several  articles  invented  by  Hunt,  including  the  sewing  ma- 
chine, and  open  a  place  of  business  in  which  the  inventions 
might  be  brought  to  the  notice  of  the  public  for  purposes  of 
Bale,  &c.  But  if  Martin  failed  to  furnish  the  means  agreed  on, 
Hunt  was  entitled  to  a  relinquishment  of  all  the  interests  trans- 
ferred by  the  agrement  to  Martin,  and  which  comprised  the 
claim  to  the  invention  of  sewing  machines,  upon  paying  the 
money  actually  advanced  by  Martin  under  the  contract.  . 

The  evidence  at  the  trial  shows  that  this  arrangement  was 
never  carried  into  practical  operation  between  Hunt  and 
Martin,  although  it  seems  some  small  advances  were  made  by 
Martin  for  the  purpose.  The  agreement  thus  became  in  effect 
a  mortgage  upon  the  sewing  machine  invention,  with  others, 
to  the  extent  of  the  moneys  so  advanced,  and  as  such  it  cannot 
be  said  to  fall  within  the  class  of  contracts  which  Hunt  cove- 
nanted with  the  defendants  that  he  had  not  executed,  being 

'  O 

but  a  lien  upon  the  interest  of  Hunt,  which  would  not  affect  or 
impair  the  right  of  the  defendants  to  "  completely  direct  in 
respect "  to  the  applications,  which,  as  appears  by  their  con- 
tract, they  desired  to  control. 

This  constitutes  a  sufficient  ground  for  affirming  the  judg- 
ment, but  another  may  be  stated  'equally  fatal  in  its  result. 
When  a  party  desires  to  rescind  or  abandon  a  contract  because 
of  some  alleged  breach,  the  law  requires  that  he  shall  act  with 
all  due  promptness  in  making  his  election,  nor  will  he,  as  a 
general  rule,  subject  however  to  a  few  exceptions,  be  per- 


212  COURT  OF  COMMON  PLEAS. 

Hunt  v.  Singer. 

mitted  to  do  so,  when,  at,  the  time  of  the  recision,  both  parties 
cannot  be  placed  in  the  identical  situation  which  they  occupied, 
and  cannot  stand  upon  the  same  terms  as  those  which  existed 
at  the  time  the  contract  was  made ;  and  the  most  obvious 
illustration  of  this  rule  is,  where  the  party  desiring  to  rescind 
hafe  received  a  partial  benefit  from  the  contract.  Lawlor  v. 
Seldon,  11  Howard,  P.  R.  526 ;  Lawrence  v.  Dale,  3  Johns. 
Oh.  23  ;  S.  C/17  Johns.  437 ;  Chitty  on  Cont.  5  Am.  ed.  742. 

Here,  it  was  shown  that  the  defendants  knew  of  the  Martin 
contract  prior  to  December,  1859,  and  regarded  it  as  worthless, 
that  they  were  unwilling,  not  only  to  advance  a  small  sum  to 
procure  its  cancellation,  but  in  addition,  continued  to  pay  the 
monthly  instalment  to  Hunt  for  many  months  thereafter,  and 
until  Howe  procured  an  extension  of  his  patent,  when  the  in- 
terests derived  under  their  agreement  with  Hunt  became  posi- 
tively valueless  to  any  one. 

Having,  as  I  think  it  may  fairly  be  inferred  from  the  evi- 
dence, by  means  of  their  controlling  Hunt's  invention,  made 
a  satisfactory  arrangement  with  Howe  and  silenced  any  oppo. 
sition.  to  his  claim  for  an  extension  on  the  part  of  those  who 
might  represent  Hunt's  claim  to  having  been  the  original  in- 
ventor of  the  sewing  machine,  they  now  desire  to  rescind  and 
annul  their  contract  when  it  is  impossible  to  place  the  plaintiffs 
in  the  condition  they  would  have  been  prior  to  the  extension 
of  Howe's  patent  having  been  procured ;  and  after  the  defen- 
dants have  acquired  and  realized,  in  all  probability,  all  the  be- 
nefit they  ever  expected  to  gain  by  their  contract  with  Hunt. 

A  plainer  illustration  of  the  propriety  of  the  rule   stated 

could  not  be  found. 

t 

Judgment  affirmed. 


NEW  YOKE— MAY,  1862.  .     213 


Knox  v.  Nutt. 


CHARLES  KNOX  v.  FURMAN  T.  NUTT. 

The  defendant,  the  clerk  of  the  plaintiff,  who  was  a  hatter,  told  the  latter  that 
if  any  of  his  personal  friends  bought  hats  on  credit,  he  would  pay  for  them 
if  they  did  not.  The  defendant  sold  hats  to  his  friends  which  were  charged 
to  them  on  plaintiff's  books. — Held,  that  the  promise  of  the  defendant  was 
collateral,  and  within  the  statute  of  frauds,  and  therefore  void. 

APPEAL  by  the  plaintiff  from  a  judgment  of  dismissal  grant- 
ed by  the  First  District  Court,  on  the  ground  that  the  promise 
on  which  the  action  was  brought  was  within  the  statute  of 
frauds. 

The  facts  sufficiently  appear  from  the  opinion  of  the  Court. 
George  W.  Stevens,  for  appellant. 
E.  W.  Dodge,  for  respondent. 

BY  THE  COURT. — BRADY,  J. — The  plaintiff  is  a  hatter,  and 
employed  the  defendant  as  clerk.  The  defendant  told  the 
plaintiff  that  if  any  of  his  personal  friends  bought  hats  on 
credit  he  would  be  responsible — that  he  would  pay  if  they  did 
not.  The  defendant  sold  hats  to  his  friends,  which  were 
charge  \  to  them,  and  they  were  never  discharged  from*  their 
obligations.  The  Justice  held  the  engagement  or  promise  of 
the  defendant  collateral,  and  within  the  statute  of  frauds.  The 
decision  was  correct.  The  persons  to  whom  it  is  alleged  the 
defendant  sold  hats  were  primarily  liable  to  the  defendant. 
He  charged  the  hats  to  them.  The  whole  credit  was  not 
given  to  the  defendant.  The  whole  responsibility  did  not  rest 
upon  him,  and  the  promise  was  therefore  collateral  and  void. 
JLeonard  v.  Vredenbergh,  8  J.  R.  29,  and  Cases  collected  iu 
a  note  to  that  case ;  Brown  v.  Bradahaio,  1  Duer,  199j  Car- 


214     .  COUET   OF  COMMON  PLEAS. 

Rappelyea  v.  Russell. 

mile  v.  Crane,  5  Hill  483  ;  Newcomb  v.  Clark,  1  Denio  226  ; 
Brady  v.  Sackrider,  1  Sandf.  514 ;  Pennel  v.  Pentz,  4  E.  D. 
Smith  639 ;  Dixon  v.  Frazel,  1  E.  D.  Smith  32  :  Brewst&r  v. 
Silence,  4  Selden  20T. 

In  Newcomb  v.  Clark,  $upra,  the  defendant  signed  a  paper 
in  these  words  :  "  Mr.  Henry  Peters — I  hereby  agree  to  pay  to 
you  the  rent  of  the  part  of  the  house  hired  of  you  by  Mr.  John 
"Ward,  in  case  he  fails."  The  promise  was  held  void,  though  in 
writing,  the  consideration  not  being  expressed.  The  case  in 
hand  cannot  be  distinguished  in  principle  from  that  case. 

The  judgment  should  be  affirmed. 


JAMES  C.  RAPPELYEA  v.  STEPHEN  P.  RUSSELL. 

The  rule  that  an  executor,  if  he  have  sufficient  assets,  is  liable  to  a  third  per- 
son who,  as  an  act  of  duty  or  necessity,  has  provided  for  the  interment  of  the 
deceased,  is  the  same  in  the  case  of  an  administrator ;  and  a  person  who  de- 
frays the  necessary  funeral  expenses  of  an  intestate,  though  before  letters  of 
administration  are  granted,  is  entitled  to  be  reimbursed  out  of  the  assets 
which  came  into  the  hands  of  the  administrator. 

An  administrator,  having  assets  in  his  hands,  who  refuses  or  neglects  to  pay 
the  funeral  expenses  of  the  intestate,  being  requested  to  do  so,  is  individu- 
ally liable  at  the  suit  of  the  person  who  has  been  at  the  expense  of  the 
funeral. 

The  plaintiff,  an  undertaker,  superintended  the  burial  of  an  intestate  having 
no  friends  or  relations  in  the  city.  The  defendant,  as  Public  Administrator, 
afterwards  took  out  letters,  and  having  in  his  hands  sufficient  assets,  refused 
to  pay  the  plaintiff's  bill,— Held,  that  he  was  individually  liable  therefor. 

APPEAL  by  the  plaintiff  from  a  judgment  of  the  Marine 
Court,  at  General  Term,  for  the  defendant,  on  a  demurrer  to 
the  complaint. 

The  complaint  alleged  that  plaintiff  was  a  "  general  furnish- 


NEW  YORK— JUNE,   1862.  215 

Rappelyea  v.  Russell. 

ing  nndertaker,",doing  business  in  the  city  of  New  York,  and 
that  the  defendant  was  the  Public  Administrator  in  and  for 
the  said  city  of  New  York.  That  on  or  about  the  9th  day  of 
June,  1860,  one  Anna  Winchester,  who  had  been,  previous  to 
that  date,  residing  in  said  cit}r,  died  intestate,  and  without 
having  any  friends  and  relations  in  said  city.  That  thereupon 
the  plaintiff,  in  his  capacity  as  such  undertaker,  superintended 
the  burial  of  the  said  Anna  Winchester,  and  did  and  per- 
formed certain  work,  labor  and  services,  furnished  certain  • 
materials,  and  paid,  laid  out,  and  expended  certain"  moneys,  * 
in  effecting  such  burial,  which  said  work,  labor,  and  services 
so  rendered,  said  materials  so  furnished,  and  moneys  so  paid, 
laid  out,  and  expended,  were  of  the  value,  reasonably  worth, 
and  amounted  in  the  aggregate  to  the  sum  of  one  hundred  and 
eighty-one  dollars  and  ten  cents.  That  said  charge  was  rea- 
sonable and  proper,  and  that  the  said  funeral  was,  in  every 
respect,  suitable  to  the  degree  and  circumstances  in  life  of  the 
said  Anna  Winchester.  That  on  the  18th  day  of  July,  1860, 
letters  of  administration  were  granted  and  issued  to  the  defen- 
dant as  such  public  administrator,  by  the  Surrogate  of  the 
city  and  county  of  Ne\v  York.  That  the  defendant  has  in  his 
hands,  as  administrator  of  the  said  Anna  Winchester,  assets  to 
the  amount  of  over  six  hundred  dollars,  in  cash,  which  he  has 
received  and  taken  possession  of  as  such  administrator,  and 
which  is  part  of  the  estate  of  the  said  Anna  Winchester,  de- 
ceased. That  while  the  said  defendant  had  in  his  hands 
such  assets,  the  plaintiff  demanded  payment  from  the  defen- 
dant, &c. 

The  defendant  demurred  to  the  complaint,  as  not  stating 
facts  sufficient  to  constitute  a  cause  of  action.  The  demurrer 
was  allowed,  and  the  judgment  being  affirmed  at  the  General 
Term  of  the  Marine  Court,  the  plaintiff  appealed  to  this  Court. 

George  0.  Barrett  (Barrett,  Brinsmade  &  Barrett),  for  ap- 
pellant. 

I.  The  Public  Administrator,  on  taking  out  letters,  became 
invested  with  all  the  rights,  powers,  and  liabilities  of  any  other 
administrator ;  and  may,  in  like  manner,  sue  and  be  sued ;  and  is 


216  COUIiT  OF  COMMON  PLEAS. 

Rappelyea  v.  RusselL 

to  be  treated  by  creditors  precisely  the  same  as  any  other  ad- 
ministrator.    3  Rev.  Stat.  5th  ed.  212. 

II.  An  executor  or  administrator,  with  assets,  is  liable  upon 
an  implied  contract  to  pay  the  funeral  expenses  of  his  testator, 
suitable  to  his  degree,  although  he  does  not  give  orders  for  it. 
Williams  on  Executors,  vol.  2,  1623,  1624 ;  Rogers  v.  Price, 
3  Young  &  Jerv.  28  ;  Tugwell  v.  Hayman,   3  Camp.    298 ; 
Corner  v.  Shew,  3  Meeson  &  Welsby,  350. 

III.  And  the  executor  or  administrator  is  liable  on  such  a  con- 
tract personally,  and  not  in  his  representative  character.    Day- 
ton on  Surrogates,  ed.  of  1855,  286 ;  Brice  v.  Wilson,  3  Neville 
&  Manning,  512  ;  Corner  v.  Shew,  Hayter  v.  Moat,  2  Meeson 
&  Welsby,  56.     (1.)    In  Corner  v.  Shew,  above  cited,  it  was 
held,  that  the  implied  promise  is  on  the  part  of  the  executor, 
personally,  and  not  in  his  representative  capacity.     And  the 
Judge  who  delivered  the  opinion  of  the    Court,  then   adds : 
"  We  are  ALL  of  that  opinion."     (2.)     It  would  seem,  even, 
that  the  naming  the  defendant  executor  in  the  declaration  is 
mere  surplusage,  and  that  he  is  liable  de  bonis  propriis,  if 
liable  at  all.     (3.)    The  principle  is  laid  down  in  the  various 
cases  to  be,  that  as  an  express  contract  by  the  executor  would 
certainly  have  bound   him    personally,  the   implied   promise 
cannot  place  him  in  a  different  condition  than  if  he  made  an 
express  contract  to  the  same  effect.     (4.)     The  rule  is  the  same 
in  the  case  of  an  administrator.     Hayter  v.  Moat,  2  Meeson  & 
Welsby,  56. 

Charles  A.  May,  for  respondent. 

I.  An  administrator  is  not  individually  or  personally  liable 
for  funeral  expenses  of  deceased  where  he  has  neither  given 
nor  adopted  directions  for  the  burial  of  the  deceased. 

II.  Administrators  have  no  power  to  act  in  relation  to  the 
estates  of  the  deceased  persons  until  administration  is  granted, 
when  they  become  vested  with  the  property  of  deceased. 

III.  It  does  not  appear  on  the  face  of  the  complaint  that 
administration  was  ever   granted   to    the   defendant    on  the 
estate  of  Anna  Winchester,  deceased.     The  place  and  time  ad- 
ministration was  granted  should  be  set  forth.     JRightmeyer  v. 
Raymond,  12  Wend.  51. 


NEW   YORK— JUNE,   1862.  •  217 

Rappelyea  v.  Russell. 

0 

IV.  There  are  no  facts  stated  in  the  complaint  from  which 
a  contract  can  be  implied  between  defendant  and  plaintiff  for 
defendant  to  pay  the  claim  sought  to  be  recovered. 

BY  THE  COURT. — DALY,  F.  J. — It  is  well  settled  that  an 
executor,  if  he  have  sufficient  assets,  is  liable  upon^an  implied 
promise  to  a  third  person,  who,  as  an  act  of  duty  or  necessity, 
has  provided  for  the  interment  of  the  deceased,  if  the  funeral 
was  conducted  in  a  manner  suitable  to  the  testator's  rank  in 
life,  and  the  charge  is  fair  and  reasonable.  Tugwell  v.  Hay- 
man,  3  Camp.  298  ;  Rogers  v.  Price,  3  Young  &  J.  28  ;  Corner 
v.  Shew,  3  Mee.  &.  Wells.  350 ;  Brice  v.  Wilson,  8  A.  &  E. 
348,  Note ;  Eapgood  v.  Houghton,  10  Pick,  154. 

1  do  not  understand  that  the  law,  as  established  by  these 
cases,  is  founded  upon  anything  peculiar  to  an  executor  as 
contra-distinguished  from  an  administrator,  but  that  it  rests 
upon  reasons  which  are  as  applicable  in  the  case  of  the  one  as 
in  that  of  the  oth'er.  The  burial  of  the  dead  is  an  act  of  public 
necessity.  It  is  an  imperative  obligation  thus  strongly  put  by 
LORD  DENMAN,  in  Key  v.  Stewart,  12  A.  &.  E.  773  :  "  Every 
person  dying  in  this  country,  and  not  within  certain  exclusions 
laid  down  by  the  ecclesiastical  law,  has  a  right  to  Christian 
burial,  and  that  implies  the  right  to  be  carried  from  the  place 
where  his  body  lies  to  the  parish  cemetery.  . .  The  common 
law  casts  upon  some  one  the  duty  of  carrying  to  the  grave,  de- 
cently covered,  the  dead  body  of  any  person  dying  in  such  a 
state  of  indigence  as  to  leave  no  funds  for  that  purpose. . .  The 
individual  under  whose  roof  a  poor  person  dies  is  bound  to 
carry  the  body  decently  covered  to  the  place  of  burial ;  he 
cannot  keep  him  unburied,  nor  do  anything  which  prevents 
Christian  burial ;  he  cannot,  therefore,  cast  him  out,  so  as  to 
expose  the  body  to  violation  or  to  offend  the  feelings  or  en- 
danger the  health  of  the  living ;  and  for  the  same  reason  he 
cannot  carry  him  uncovered  to  the  grave." 

Unless  a  man  has  left  specific  directions  as  to  the  mode  of 
his  interment,  it  may  be  assumed  to  be  in  consonance  with  his 
wishes,  as  it  is  conformable  to  the  habits  of  society,  that  he 
should  be  buried  in  the  manner  which  custom  and  usage  have 
established.  Funeral  expenses,  therefore,  may  be  defrayed  by 
an  executor  before  probate  (Toller's  Law  of  Executors,  24; 


218  COURT  OF  COMMON  PLEAS. 

Rappelyea  v.  Russell. 

• 

2  Rev.  Stat.  71,  §  16),  or  by  a  stranger,  if  the  necessity  exists 
for  his  interference  (Office  and  Duties  of  Executors,  174 ;  Swin- 
burne, 6  §  22  u. ;  Rogers  v.  Price),  3  Young  &  J.  and  this  ex- 
pense is  a  charge  upon  the  estate  of  the  deceased,  which  take? 
priority  over  every  other.  Parker  v.  Lewis,  2  Dev.  21 ;  White 
v.  Stephens,  R.  M.  Char! ton  R.  56. 

If  a  person  defrays  the  necessary  funeral  expenses  of  an  in- 
testate before  letters  of  administration  are  granted,  he  is  en- 
titled to  be  reimbursed  out  of  the  assets  which  coiae  into  the 
hands  of  the  administrator.  "  Funeral  expenses,"  says  Chief 
Justice  TAYLOR,  in  Gregory  v.  Hooker,  Hawks  R.  394,  are 
not  a  debt,  but  properly  a  charge  upon  the  estate,  "  and  if  an 
administrator  having  assets  in  his  hands  refuses  or  neglects  to 
pay  it  after  being  requested  to  do  so,  he  is  individually  liable 
at  the  suit  of  the  person  who  has  been  at  the  expense  of  the 
funeral. 

In  Arbat  v.  Churchland,  cited  in  Rogers  v.  Price,  3  Young 
&  J.,  at  page  32,  an  undertaker  furnished  the  funeral  of  the 
intestate  at  the  request  of  the  surgeon  who  attended  him,  and 
administration  being  afterwards  granted  upon  his  estate,  the 
undertaker  arrested  the  administrator  for  the  amount  of  his 
bill,  but  subsequently  abandoned  the  suit.  The  administrator 
brought  an  action  for  false  imprisonment  which  was  not  sus- 
tained, BEST,  C.  J.,  being  of  opinion  that  the  original  action 
was  well  brought,  and  that  the  undertaker  might  have  re- 
covered. 

In  Gregory  v.  Hooker,  Hawks,  390  (N.  Carolina),  the 
question  of  the  liability  of  an  administrator  for  funeral  ex- 
penses incurred  without  his  knowledge  was  much  discussed, 
and  it  was  held  that  a  person  who  had  furnished  certain 
articles  for  the  funeral  of  the  deceased,  before  administration 
granted,  could  not  maintain  an  action  against  the  adminis- 
trator for  their  value,  where  no  notice  of  the  claim  had  been 
given  before  suit  brought. 

But  afterwards  in  the  same  State  it  was  decided,  in  Parker 
v.Lewis,  2  Dev.  21,  that  an  action  for  funeral  expenses  might  be 
maintained  against  an  administrator.  That  they  were  a  charge 
upon  the  assets  independently  of  any  promise  by  the  adminis- 
trator, and  if  suitable  to  the  estate  and  degree  of  the  deceased, 
were  to  be  preferred  to  any  other  claim. 


NEW  YORK— NOVEMBER,   1S62.  219 

Smith  v.  The  Mayor,  &c. 

The  only  case  relating  to  funeral  expenses,  in  this  State, 
appears  to  be  Myer  v.  Cole,  12  Johns.  349  ;  but  all  that  was 
held  in  that  case  was  that  a  count  upon  a  promise  by  an  execu- 
tor to  pay  the  costs  and  charges  of  the  testator's  funeral 
could  not  be  joined  with  a  count  for  work  and  labor  and  goods 
sold  to  the  testator  in  his  lifetime. 

In  the  present  case  the  plaintiff  has  averred  that  in  the 
capacity  of  undertaker  he  superintended  the  burial  of  Anna 
Winchester,  expending  money  and  furnishing  materials  for  her 
funeral ;  that  she  died  intestate,  having  no  friends  or  relations 
in  this  city  ;  that  the  defendant,  afterwards,  as  public  adminis- 
trator, took  out  letters  of  administration  ;  that  he  has  assets  in 
his  hands  more  than  sufficient  to  discharge  the  plaintiff's  claim, 
and  that  having  such  assets  in  his  hands,  he  was  requested  to 
pay  the  plaintiffs  bill,  and  refused  to  do  so.  This  is  sufficient 
to  maintain  the  action.  The  demurrer  to  the  complaint  was 
not  well  taken,  and  the  judgment  of  the  Court  below  waa 
erroneous. 

Judgment  reversed. 


JOSEPH  B.  SMITH  v.  The  MAYOR  and  COMMONALTY  of  the  CITY 
of  NEW  YOKK. 

One  who  is  appointed  to  a  municipal  office,  but  who  is  unlawfully  excluded 
therefrom  by  a  third  person,  who  alone  performs  the  duties  of  the  office, 
cannot  recover  the  compensation  allowed  by  law  for  such  services,  without 
at  least  showing  that  he  has  taken  every  proper  legal  measure  to  obtain  pos- 
session of  the  office.  . 

This  was  an  appeal  from  a  judgment  entered  upon  the  report 
of  a  referee. 

It  appeared  that  one  John  J.  Roof  was  appointed  by  Charles 
Devlin,  then  Street  Commissioner,  a  Deputy  Collector  of  As- 
sessmento.  That  during  the  suit  between  one  Conover  and 


COUKT  OF  COMMON  PLEAS. 


Srhith  v.  The  Mayor,  &c. 


Devlin,  relative  to  the  street  commissionership,  he  was  re- 
strained from  exercising  his  duties  as  Deputy  Collector  by  an 
injunction,  and  that  during  that  time  he  was,  by  the  direction 
of  Mr.  Devlin,  present  at  the  Collector's  office,  ready  tp  per- 
form any  services  required  of  him,  but  that  the  collections 
were  actually  made  by  one  Libby.  It  also  appeared  that  he 
had  taken  no  legal  proceedings  to  obtain  the  office. 

Proof  was  given  that  Roof  could  have  obtained  other  paying 
employment,  and  what  amount  would  have  come  to  him  as 
compensation  had  he  been  permitted  to  act  as  deputy  collect- 
or ;  also  of  the  assignment  of  the  claim  to  the  plaintiff. 

The  complaint  alleged  that  the  defendants  wholly  neglected 
and  refused  to  allow  him  to  enter  upon  and  discharge  the  du- 
ties of  his  office,  or  to  furnish  him  employment  in  his  office, 
and  claimed  that  the  defendants  were  indebted  to  him  for  two 
thousand  five  hundred  dollars,  which  he  would  have  received 
in  such  office,  and  damages. 

The  referee  gave  judgment  for  him  for  -  the  amount  of  the 
per  centage  he  would  have  received  on  the  collections  made. 

Judgment  was  entered  accordingly,  and  the  defendants  ap- 
pealed. 

Greene  C.  Bronson,  for  the  appellants. 

I.  The  claim  of  a  public  officer  for  compensation  is  not 
founded  upon  contract.  He  is  entitled  to  compensation  for 
services  rendered,  if  provision  is  made  by  law  for  such  com- 
pensation ;  but  not  otherwise.  The  right  to  compensation 
grows  out  of  the  existence  of  the  appropriation,  and  the  rendi- 
tion of  the  services  which  that  appropriation  is  intended  to  com- 
pensate, and  not  out  of  any  contract  between  the  government 
and  the  officer  that  the  services  shall  be  rendered  by  him. 
The  obligation  to  render  the  services  arises  from  the  relation  of 
the  officer  to  government  and  his  oath  of  office,  and  does  not 
rest  upon  contract.  Conner  v.  the  Mayor,  &c.,  of  New  York, 
1  Seld.,  296  ;  Commonwealth  v.  Bacon,  6  Serg.  and  R,  322. 
(1.)  Public  offices  in  this  State  are  not  incorporeal  heredita- 
ments, nor  have  they  the  character  or  qualities  of  grants. 


NEW  YORK— JUNE,  1862.  221 

Smith  v.  The  Mayor,  &c. 

They  are  created  for  the  benefit  of  the  public  and  not  for  the 
benefit  of  the  incumbent.  (2.)  The  public  officer  occupies  a 
position  analogous  to  that  of  trustee.  No  action  will  lie 
against  government,  whether  it  be  the  State  government  or  a 
municipal  corporation,  upon  the  ground  of  a  breach  of  con- 
tract. As  there  is  no  contract,  there  can  be  no  breach. 
(3.)  The  plaintiff  having  brought  his  action  upon  the  ground 
of  a  breach  of  contract,  must  fail. 

II.  The  plaintiff  has  mistaken  both  his  rights  and  his 
remedy.  His  assignor,  Mr,  Roof,  if  entitled  to  the  office 
claimed,  should  have  instituted  his  poceedings  in  the  nature 
of  a  quo  warranto  against  Mr,  Libby,  who  was  performing  the 
duties  of  the  office,  and,  after  judgment  of  ouster,  have 
recovered  damages  against  the  usurper.  2  Rev.  Stat.  582, 
g34. 

HE.  Plaintiff's  assignor  was  prevented  from  entering  upon 
the  duties  of  his  office,  not  by  the  defendants,  but  by  an  irij  unc- 
tion order  of  the  Supreme  Court.  The  defendants  were  not 
parties  plaintiff  to  that  suit,  and  are  not  responsible  for  the  re- 
sult. The  remedy  (if  any)  was  upon  the  undertaking  given  at 
the  time  the  injunction  issued. 

IY.  There  is  no  proof  that  the  defendants  in  any  manner 
interposed  any  obstacle  to  the  performance  of  the  duties  of  the 
office  by  Mr.  Rotof.  The  Street  Commissioner  appointed  him. 
Mr.  Taylor,  the  Collector,  acknowledged  him  to  have  been 
legally  appointed.  The  duties  of  the  office  are  pointed  out 
by  the  ordinances.  The  plaintiff  did  not  perform  the  duties, 
and  he  is  not  entitled  to  ask  the  defendants  to  pay  him  for  not 
doing  .his  duty. 

Woodbury  &  Churchill,  for  respondent. 

I.  John  J.  Roof,  respondent's  assignor,  was  duly  appointed 
to  the  office  of  Deputy  Collector  of  Assessments.     Chap.  444, 
Laws  of  1857  (amended  charter  of  the   city  of  New  York), 
§  21  and  §  23  ;  Ordinance  to  reorganize  the  Street  department, 
approved  June  26th,  1857,  chap,  xi.,  §  14. 

II.  He  duly  complied  with  the  provisions  of  the  acts  of  the 
Legislature,  and  the  city  Ordinances,  relative  to  said  office, 


222  COURT   OF  COMMON  PLEAS. 

V 

Smith  v.  The  Mayor,  &c. 

and  became  entitled  to  hold,  and  did  hold  it.  Amended  char- 
ter of  1857,  §  30  and  §  39 ;  Ordinance  to  reorganize  the  Street 
Department,  chap,  xi.,  §  85.  • 

III.  The  appellants  neglected  and  refused  to  all6w  said 
Roof  to  enter  upon  and  discharge  the  duties  of  said  office,  or 
to  furnish  him  any  emplo}rment  therein. 

IV.  Roof  was  not  able  to  accept  any  other  employment 
while  he  held  the  office  of  Deputy  Collector  of  Assessments,  by 
reason  of  tne  directions  of  his  superiors,  the  agents  of  the 
appellants,  whose  orders  he  was  obliged  to  obey. 

V.  The  case  does  not  show  that  Roof  could  have  taken  any 
means  to  have  enabled  him  to  perform  the  duties  of  his  office. 
It  does  not  appear  therein  that  any  individual  held  the  place 
which  belonged  to  him. 

VI.  The  fact  that  Roof  was  under  an  injunction,  obtained, 
as  possibly  the  appellants  will  assert,  by  third  parties,  against 
whom  a  remedy  may  be  had  under  the  injunction  bond,  is  no 
defence  in  this  action.     (1.)    The  refusal  fef  the  appellants  to 
give    him    employment    took  place  immediately  after  he  was 
appointed,    while    the    injunction    was    obtained    afterward. 
The    appellants  were  in    the  wrong  by    their    own    option, 
and  they  do   not  show    that    they    adopted   or  desired  to 
adopt  any   other  line  of  action.    (2.)    The  evidence  as  to  the 
injunction  is  too  indefinite  to  constitute  a  defence.     (3.)     Had 
it  not  been  for  the  appellants,  Roof  might  have  sought  and  ob- 
tained other  employment  while  the  injunction  was  pending, 
and  it  would  have  been  his  duty  so  to  have  done,  but  he  was 
directed  by  the  agent  of,  the  appellants,  whose  orders  he  was 
obliged  to  obey,  to  report  himself  daily  for  duty. 

BY  THE  COURT. — BRADY  J. — John  J.  Roof,  the  plaintiff's 
assignor,  was  appointed  on  the  1st  day  of  July,  1857,  a  deputy 
collector  of  assessments  in  the  bureau  of  the  Collector  of 
Assessments,  which  formed  a  part  of  the  street  department  of 
the  defendants.  The  appointment  was  made  by  Charles  Dev- 
lin, the  appointee  of  the  defendants  to  the  office  of  Street 
Commissioner.  The  right  of  Devlin  to  the  office  was  contested 
by  another  claimant,  but  ultimately  declared  in  his  favor. 


NEW  YORK— JUNE,  1862.  223 

Smith  v.  The  Mayor,  &c. 

Roof's  appointment  was  therefore  regular,  and  he  duly  quali- 
fied himself  to  enter  upon  his  duties.     He  never  did,  however, 
perform  any  of  those  duties,  and,  it  would  seem,  because  he 
was   restrained   by   an   injunction    order    issued    out   of  the 
Supreme  Court  of  this  State.  ,It  does  not  appear  by  the  case  at 
whose  instance  the  injunction  was  obtained,  but  it  is  not  pre- 
tendted    that    the    defendants    commenced    any   proceedings 
against  either  Devlin  or  Roof.     Devlin,  as  before  stated,  was 
in  fact  their  appointee,  and  MB  right  to  the  office  was  not  ques- 
tioned  by  them.     It  appears,  however,  from   the  case,  that 
Roof,  when  qualified  thereto,  tendered  his  services  to  the  Col- 
lector of  Assessments,  Mr.  Taylor,  with  instructions  from  Mr. 
Devlin.     That  he  was  then  told  by  Mr.  Taylor  that  whatever 
moneys  were  collected  would  be  collected  and  deposited  by 
Mr.  Libby,  who  was  retained,  and  that  Mr.  Libby  performed 
the  services  which  Roofs  appointment  imposed  upon  him.     It 
also  appears  that  Roof  did  not  commence  any  proceedings  to 
oust  Libby,  or  to  get  possession  of  his  office  held  by  Libby,  de 
facto.     He  seems  to  have  been  controlled  by  the  injunction 
order,  and  influenced  by  the  statement  of  Mr.  Taylor  when  he 
tendered  his  services.     He  attended  each  day  at  the  proper 
department,  it  is  true,  but  remained  inactive,  so  far  as  his 
duties  were  concerned.     We  are  not  advised  as  to  the  extent 
of  the  prohibition  contained  in  the  injunction  order,  and  it 
may  be   said   that  it  is  nol:  material   to   the  decision  of  this 
appeal.     It  cannot  be  supposed,  however,  that  it  was  broad 
enough  to  prevent  Roof  from  taking  such  measures  in  the 
nature  of  a  quo  warranto  as  might  be  necessary  to  place  him 
in  possession  of  his  office  from  which  he  was  excluded,  not  by 
the  defendants,  but  a  usurper.     And  herein  lies  the  answer 
to  the  plaintiff's  claim.     He  seeks  to  recover  from  the  defen- 
dants the  damages  which  Roof  sustained  in  consequence  of  the 
defendants  refusing  to  allow  him  to  discharge  the  duties  of 
his  office.    There  is  no  pretence  that  Roof  ever  did  discharge 
them,  and  the  evidence  shows  that  through  his  own  neglect  he 
never  was  in  possession  of   his  office.      The   defendants  arc 
not  shown  to  have  interfered  with  him.     His   appointment 
was  legal  and  his  right  to  the  office  clear.     The  defendants 
were   under  no  obligation  to  place  him  in   possession.     His 
remedy  was  declared  by  the  law  of  the  land,  and  the  conse- 


224  COURT  OF  COMMON  PLEAS. 

Cassin  v.  Delaney. 

qnences  of  his  omission  to  avail  himself  of  it  must  be  borne 
by  him. 

The  judgment  should  be  reversed. 


JAMES  CASSIN  v.  LAWRENCE  DELANEY,  and  his  wife. 

The  coercion  of  the  wife  which  is  supposed  to  exist  in  all  cases  of  tort,  com- 
mitted by  her  in  the  presence,  or  by  the  direction,  of  her  husband,  and  for 
which  the  husband  alone  is  presumptively  liable,  is  but  a  presumption  of 
law,  which  may  be  repelled  by  proof. 

And  where  the  evidence  justified  the  referee  in  his  conclusion  that  the  wrong- 
ful act  of  the  wife  was  voluntary  on  her  part,  and  was  her  individual  act, 
and  although  in  some  respects  done  in  the  presence  and  company  of  her 
husband,  yet  was  not  done  by  his  command  or  coercion, — Held,  that  the 
Court  will  assume  as  a  matter  of  fact  that  the  legal  presumption  of  coercion 
of  the  wife  has  been  repelled  by  proof. 

The  plaintiff  was  arrested  and  imprisoned  at  the  instance  of  the  defendant  L. 
on  a  charge  of  embezzlement.  On  the  examination  before  the  police  jus- 
tice, the  plaintiff  was  discharged  on  the  jjround  that  the  money  alleged  to 
have  been  embezzled  by  him  was  not  the  property  of  L.  but  of  his  wife. 
The  defendant  L.  went  for  his  wife,  who  appeared  and  made  her  complaint 
and  the  plaintiff  was  detained  until  he  procured  bail, — Held,  in  an  action  for 
the  last  arrest,  that  the  wife  being  proved  to  have  acted  voluntarily  and 
without  the  coercion  of  her  husband,  the  husband  and  wife  were  properly 
joined  as  parties  defendant. 

'Held,  further,  that  the  damages  arising  from  the  first  arrest  ought  not  to  be 
blended  with  those  of  the  second  arrest,  and  the  referee  having  evidently 
done  so,  the  Court,  on  appeal,  will  reduce  the  amount  of  the  judgment,  or 
reverse  it.  .^ 

APPEAL  by  the  defendants  from  a  judgment  rendered  on  the 
report  of  a  referee. 

The  action  was  for  maliciously  procuring  the  arrest  and  im- 
prisonment of  the  plaintiff,  on  a  charge  of  embezzlement. 
The  facts  are  fully  stated  in  the  opinion  of  the  Court. 


NEW  YORK— JUNE,   1862.  225 

Cassin  v.  Delaney. 

Beebe,  Dean  &  Donahue,  for  appellants. 

Andrew  Blake  and  E.  W.  Dodge,  for  respondents. 

BY  THE  COURT. — HILTON,  J. — The  defendants  were  sued 
jointly  for  maliciously  procuring  the  arrest  and  imprisonment  of 
the  plaintiff,  on  the  21st  day  of  November,  1855.  The  proof,  on 
the  trial  before  the  referee,  showed  that  the  plaintiff  was  first  ar- 
rested on  the  20th  of  November,  at  the  instance  of  the  defendant 
Lawrence  Delaney  ;that  he  was  imprisoned  for  that  night,  and  in 
the  morning,  on  being  brought  before  the  police  justice,  was 
discharged,  because  it  appeared  that  the  money  which  it  was 
alleged  the  plaintiff  had  embezzled  did  not  belong  to  the  de- 
fendant Lawrence,  but  was  the  property  of  his  wife.  He 
therefore  went  for  her,  and  she  came  before  the  justice  and 
made  her  complaint  for  the  embezzlement.  The  plaintiff  being 
still  in  the  court  room,  was  informed  by  the  justice  that  he 
could  not  depart  until  he  gave  bail  for  his  appearance  on  the 
charge.  He  did  so,  and  then  left,  and  it  is  for  this  last  arrest 
the  present  action  is  brought,  it  appearing  that  Ann  Delaney 
subsequently  went  before  the  Grand  Jury  to  procure  the  plain- 
tiff's indictment  on  the  charge  she  thus  made,  when  her  com- 
plaint was  dismissed.  On  the  proofs  the  referee  held  the  de- 
fendants jointly  liable,  and  reported  in  the  plaintiff's  favor, 
fixing  his  damages  at  one  thousand  dollars. 

On  the  argument  of  this  appeal  it  is  contended  on  behalf  of 
the  defendants, 

1st.  That  as  it  appeared  the  wife  made  the  complaint  in  the 
presence  of  her  husband,  it  must  be  presumed  to  have  been  so 
made  by  his  coercion  and  command,  and  therefore  he  alone  is 
liable. 

2d.  That  the  damages  awarded  are  excessive,  it  being  manifest 
that  the  referee  has  mingled  the  injuries  arising  from  the  first  ar- 
rest and  imprisonment  at  the  instigation  of  the  husband,  with  the 
subsequent  arrest  on  the  complaint  of  the  wife:  the  latter 
constituting  the  only  ground  for  the  present  action,  and  the 
former  being  the  subject  of  another  suit  pending  against  the 
husband  alone. 

It  is  undoubtedly  the  rule  that  for  the  torts  of  the  wife 
committed  during  coverture,  in  the  company  or  by  the  order 
or  direction  of  the  husband,  he  alone  is  presumptively 


226  COURT  OF  COMMON  PLEAS. 

Cassin  v.  Delaney. 

liable ;  while  for  the  torts  committed  by  the  wife  alone, 
they  are  jointly  liable,  and  she  must  be  joined  with  her  hus- 
band-in any  suit  respecting  them.  But  it  is  also  true  that  the 
coercion  of  the  wife,  which  is  supposed  to  exist  in  all  cases  of 
tort  committed  in  the  presence  or  by  direction  of  the  husband, 
is  but  a  presumption  of  law,  and  like  all  other  presumptions 
may  be  repelled  by  proof.  2  Kent  Com.  150 ;  Bacon  ab.  tit. 
Barren  &  Feme ;  Reeve's  Domestic  Rel.  74-. 

Here,  the  testimony  appears  to  have  been  sufficient  to  have 
justified  the  referee  in  concluding  that  the  wrongful  act  of  the 
wife  was  voluntary  on  her  part  and  was  her  individual  act,  and 
although  in  some  respects  done  in  the  presence  and  company 
of  her  husband,  yet  not  done  by  his  command  or  coercion ;  we 
must,  therefore,  assume  that  the  referee  found  as  matter  of 
fact,  from  the  evidence,  that  the  legal  presumption  of  coercion 
of  the  wife  had  been  repelled  by  proof. 

We  think,  however,  that  the  other  objection  respecting  the 
excessiveness  of  the  damages  awarded,  is  well  grounded. 
The  referee  has  evidently  blended  the  injuries  arising  from 
both  arrests,  and  awarded  damages  for  both  in  the  present 
action.  We  say,  evidently,  because  it  cannot  be, with  an  action 
pending  for  the  recovery  of  damages  for  the  first  imprison- 
ment, and  which  really  constitutes  the  only  serious  injury  the 
plaintiff  has  sustained  at  the  hands  of  the  defendants,  indivi- 
dually or  jointly,  a  recover}'  of  one  thousand  dollars,  in  the 
present  case  can  be  justified. 

Under  the  circumstances,  therefore,  the  judgment  must  be 
reversed,  and  new  trial  ordered  on  payment  of  costs,  unless 
the  plaintiff  consents  to  reduce  his  recovery  to  two  hundred 
and  fifty  dollars. 

Ordered  accordingly. 


SEW   YORK— NOVEMBER,   1862.  227 


Moriarty  v.  Harnden's  Express. 


MOBIARTY,  METEK  and  others,  v.  HABNDEN'S  EXPRESS. 

The  plaintiffs  bought  goods  of  E.  and  gave  directions  to  ship  them  by  the  de- 
fendant, an  Express  Company, — Held,  that  under  such  directions,  E.  had 
authority,  so  far  at  least  as  defendants  were  concerned,  to  make  a  contract 
limiting  the  defendant's  liability. 

A  carrier  receiving  goods  for  carriage  will  not  be  required  to  examine  the 
authority  of  the  person  presenting  them,  to  make  a  contract  limiting  his 
responsibility. 

That  the  right  of  a  common  carrier  to  limit  his  liability  is  no  longer  subject 
to  discussion. 

APPEAL  by  the  defendant  from  a  judgment  entered  on  a  ver- 
dict, and  from  an  order  denying  a  motion  for  a  new  trial. 

The  complaint  averred  the  delivery  to  the  defendants,  as 
common  carriers,  of  two  boxes  of  goods,  to  be  carried  from 
lsrew  York  to  Selma,  Alabama ;  that  defendants  delivered  the 
boxes  at  Selma,  but  "  so  negligently  conducted  themselves  in 
and  about  the  transportation  of  the  goods,  and  the  taking  care 
thereof,  that  a  part  thereof — two  pieces  of  silk,  one  box  of 
hosiery,  and  box  of  pins,  of  the  value  of  three  hundred  dollars, 
have  been  wholly  lost." 

The  proof  on  the  part  of  plaintiff  showed  that  Emanuel  & 
Co.,  merchants  in  the  city  of  New  York,  on  the  order  of  Meyer 
&  Co.,  purchased  the  contents  of  the  boxes  in  question,  and 
had  them  packed  in  Emanuel  &  Co.'s  store.  Meyer  &  Co. 
ordered  Emanuel  &  Co.  to  forward  the  goods  by  Ilarnden's 
Express  ;  Emanuel  &  Co.  kept  in  their  office  a  book  of  the 
blank  bills  of  lading  used  by  all  the  express  companies  ;  they 
sent  for  defendants'  wagon,  tilled  up  one  of  the  bills  of  lading, 
and  had  it  signed  by  the  defendants,  and  returned  to  Emanuel 
&  Co.  The  bill  of  lading  stated  that  Emanuel  &  Co.  had  de- 
livered to  defendants  two  cases,  marked  M.  and  E.  Meyer  & 
Co.>  to  be  forwarded  to  Selma,  Alabama,  and  stipulated  that 


22S  COURT  OF  COMMON  PLEAS. 

Moriarty  v.  Harnden's  Express. 

the  defendants  were  not  to  be  responsible  for  any  loss  or 
damage  arising  from  the  dangers  of  railroad,  steam,  or  river 
navigation,  leakage,  fire,  or  from  any  cause  whatever,  unless 
the  same  be  proved  to  have  occurred  from  the  fraud  or  gross 
negligence  of  the  defendants,  their  agents  or  servants.  The 
bill  of  lading  further  stated,  that  goods  carried  were  valued 
under  fifty  doll  are,  unless  otherwise  stated.  This  bill  of  lading 
was  read  in  evidence  by  plaintiff".  The  plaintiff  gave  evidence 
showing  that  two  pieces  of  silk  were  in  the  boxes  when  de- 
livered to  the  defendants,  and  that  the  same  were  missing 
when  the  boxes  were  received  from  the  defendants  in  Selma. 
The  Judge  charged  the  jury  among  other  things,  as  follows  : 
"  It  is  for  you  lo  say  with  whom  the  contract  was  made — 
whether  with  Emanuel  &  Co.  or  with  the  plaintiffs.  If  you 
conclude  that  it  was  made  with  Emanuel  and  Co.,  on  the 
plaintiff's  behalf,  then,  unless  Emanuel  &  Co.  had  authority  to 
make  such  a  contract,  the  plaintiffs  are  not  bound  by  any  such 
condition  in  the  receipt,  in  respect  to  the  defendants'  liability 
only  in  the  event  of  fraud  or -gross  negligence." 

The  jury  returned  a  verdict  for  plaintiffs,  and  judgment  was 
entered  against  the  defendant.  The  defendant  then  appealed 
to  the  General  Term. 

Henry  A.  Cram,  (Cram  &  Fowler),  for  appellants. 

I.  The  bill  of  lading  was  the  binding  contract  between  the 
parties.     The  authority  of  Emanuel   &  Co.  was  immaterial, 
and  it  is  a  proposition  without  foundation  of  authority  or  prin- 
ciple, that  any  one  may  make  a  contract  with  a  carrier,  and 
after  performance  by  the  carrier,  that  the  contract  may  be  re- 
pudiated, on  the  ground  of  its  being  the  act  of  an  unauthor- 
ized agent.     (2.)    The  direction  to  send  the  goods  by  Harn- 
den's Express  was  an  authority  to  make  this  very  contract. 

II.  Carriers  may  now,  by  contract,  limit  their  liability  in  all 
cases  excepting  their  own  fraud.     Dorr  v.  Steam  Nav.    Co. 
1  Kernan,  490 ;     Wells  v.  Steam  Nav.  Co.,  4  Selden,  381 ; 

Wells  v.  N.  Y.  C.  R.  R.  Co.,  26  Barb,  641. 

III.  The  right  of  the  carrier  to  make  the  contract  as  to  the 
value  clause  has  been  always  clear,  and  was  binding  in  all 


NEW    YORK— NOVEMBER,   1862.  229 

Moriarty  v.  Harnden's  Express. 

cases  unless  in  tlie  case  of  actual  fraud  of  the  carrier.     Cole  v. 
Goodwin,  19  Wend.  251. 

E.  (&  E.  F.  Brown,  for  respondents. 

I.  The  printed  matter  following  the  receipt  and  agreement 
to  carry  the  goods,  reciting  an  agreement  to  limit  the  common 
law  liability  of   the   defendants,  was  not  binding  upon    the 
plaintiffs.     (1.)     Because  not  signed  or  expressly  assented  to 
by  the  plaintiffs  or  their  agents.     (2.)     Because  if  assented  to 
by  the  plaintiffs'  agents  ("  I.  Emanuel  &  Co.,")  they  had  no 
authority  to  make  any  contract  for  the  plaintiffs  with  the  Ex- 
press Company  limiting  their  common  law  liability. 

II.  The  evidence  was  sufficient  to  establish  "  gross  negli- 
gence "  or  fraud,  or  even   embezzlement   against    the   defen- 
dants.      Camden  4*  A.  R.  R.  Co.  v.  Bauldauf,  16  Penn.  78  ; 
Swindler  v.  Hillard,  2  Richardson   (S.  C.),  286 ;    Story  on 
Bail  in.  529,  574 ;     Clark  v.  Spencer,  10  Watts,  335. 

III.  The  defendants,  as  common  carriers,  could  not  exoner- 
ate themselves  from  liability,  in  case  of  loss  happening  through 
the  negligence  or  fraud  of  themselves,  their  agents,  or  servants, 
and  this  they  have  not  attempted  to  do  by  their  alleged  agree- 
ment, except  to  limit  the  value  of  the  goods  below  fifty  dollars, 
unless  otherwise  stated.    Sager  v.  Portsmouth  R.  R.,  31  Maine 
K.,  236. 

BY  THE  COURT. — BRADY,  J. — The  defendants  agreed  to  carry 
from  this  city  to  Selma,  Alabama,  two  cases  of  .goods  marked 
M.  &  E.  Meyer  &  Co.  At  the  time  the  goods  were  delivered 
a  receipt  "  was  filled  up "  by  I.  Ernanuel  &  Co.  who  were 
acting  for  the  plaintiffs  in  forwarding  the  goods,  and  given  to 
the  defendants'  driver  who  signed  it.  That  receipt  was  pro- 
duced and  put  in  evidence  by  the  plaintiffs  after  they  had 
rested  and  a  motion  for  nonsuit  had  been  made  on  the  ground 
that  it  appeared  from  the  evidence  that  there  was  a  written 
contract  which  the  plaintiffs  had  not  produced.  After  its  in- 
troduction the  witness  who  had  identified  it  was  asked  this 
question,  "Was  your  attention  ever  called  to  the  printed  matter 
Of  this  receipt?"  The  question  was  objected  to,  but  allowed, 
and  an  exception  was  taken.  The  witness  Vas  the  book-keeper 


230  COURT  OF  COMMON  PLEAS. 

Moriarty  v.  Hamden's  Express. 

of  I.  Emanuel  &  Co.,  and  it  was  wholly  immaterial  whether 
his  attention  had  been  called  to  the  printed  matter  or  not. 
The  evidence  had  disclosed  the  fact  that  Emannel  &  Co.  had  a 
receipt  book  of  the  defendants'  in  their  store,  from  which  the 
receipt  in  question  was  adopted  by  them,  and  without  any  ap- 
plication on  the  part  of  the  defendants.  It  was  filled  up  and 
given  to  the  driver  of  the  defendants  and  signed  by  him.  The 
witness  was  also  asked,  "  What  authority  had  you  from  Meyer 
&  Co.  relative  to  the  shipping  of  the  goods  ?"  and  the  question 
was  allowed,  although  objected  to.  The  answer  was,  "  Our 
directions  were  to  ship  the  goods  by  Harnden's  Express ;  we 
had  no  other  authority  or  direction  from  the  plaintiffs  in 
respect  to  the  shipment."  Upon  this  evidence  the  presiding 
Judge  charged  the  jury  as  follows  :  "  If  you  find  that  I.  Eman- 
nel &  Co.  had  no  other  authority  or  direction  in  regard  to  the 
goods  than  merely  to  purchase  and  ship  them  in  the  ordinary 
way,  then  no  contract  existed  between  the  plaintiffs  and  de- 
fendants limiting  the  liability  which  the  law  imposes  upon 
common  carriers  in  case  of  non-performance  of  their  agree- 
ment to  deliver  property  in  a  safe  condition."  And  further, 
"  that  unless  Emanuel  &  Co.  had  authority  to  make  such  a 
contract  the  plaintiffs  are  not  bound  by  any  such  condition  in 
respect  to  the  defendants'  liability  in  the  event  of  fraud  or 
gross  negligence."  This  was  substantially  telling  the  jury  that 
unless  Emanuel  &  Co.  had  the  power  to  make  the  contract 
contained  in  the  receipt,  the  defendants  were  liable.  The 
charge  was  erroneous.^  The  right  of  the  carrier  to  limit  his 
liability  is  no  longer  subject  to  discussion.  Dorr  v.  Steam 
Nav.  Co.,  1  Kernan,  490 ;  Wells  v.  Steam,  Nov.  Co.,  4  Selden, 
381 ;  and  when  a  special  contract  is  made  the  relations  of  the 
parties  are  changed,  and  the  carrier  becomes  as  to  that  trans- 
action an  ordinary  bailee  and  private  carrier  for  hire,  PARKER, 
J.  in  Dorr  v.  Steam  Nav.  C.o//8upra.  The  directions  given 
by  plaintiffs  to  ship  goods  by  Harnden's  Express,  authorized 
Emanuel  &  Co.,  so  far  at  least  as  the  defendants  are  con- 
cerned, to  make  any  contract  which  the  defendants  insisted 
upon.  If  the  agents  transcended  their  power,  the  innocent 
party  should  not  suffer.  There  was  nothing  in  the  case  to  call 
upon  the  defendants  for  an  examination  oj  investigation  of  the 
authority  of  Emanuel  &  Co.  It  was  enough  that  they  deliv- 


NEW  YOKE— NOYEMBEK,  1862.  231 

Moriarty  v.  Harnden's  Express. 

ered  the  goods  to  them  and  asked  for  their  carriage  ;  but  in 
this  case  they  did  more,  they  drew  the  contract  and  presented 
it  for  signature.  It  would  virtually  destroy  the  liability  of  the 
express  business,  which  has  become  a  very  important  part  of 
our  commercial  system,  to  hold  that  when  goods  are  delivered 
the  carrier  who  chooses  to  limit  his  reponsibility  should  stop 
to  examine  the  authority  of  the  person  presenting  the  goods 
to  make  the  contract  which  he  exacts.  It  would,  in  this  case, 
in  my  judgment,  be  erroneous  to  sustain  the  proposition  that 
Emanuel  and  Co.  had  not  authority  to  make  this  contract. 
They  had  possession  of  the  goods  and  delivered  them  for  car- 
riage. The  possession  was  a  lawful  one,  and  the  person 
selected  to  transport  them,  in  accordance  with  instructions 
received;  not  only  that,  but  the  plaintiffs  introduced  the  con- 
tract to  sustain  their  case,  and  then  sought  to  avoid  it  by  prov- 
ing instructions  in  relation  to  the  carriage,  by  the  book-keeper 
of  Emanuel  &  Co.  If  the  doctrine  be  tolerated,  that  in  cases 
similar  to  this,  the  contract  can  be  avoided  for  want  of  power 
to  make  it,  the  proof  on  the  part  of  the  plaintiff  should  be  am- 
ple. I  think  the  rule  is  not  a  sound  one,  and  that  its  annun- 
ciation was  error. 

The  judgment  should  be  reversed. 


232  COURT  OF   COMMON  PLEAS. 


Jaroslauski  v.  Saunderson. 


LEOPOLD  JAROSLAUSKI  AND  OTHERS  v.  ZACCHIUS  W. 
SAUNDERSON. 

The  plaintiffs  transferred  the  bill  of  lading  of  one  hundred  barrels  of  flour 
to  the  defendant,  who  was  the  assignee  for  the  benefit  of  the  creditors  of  M. 
&  Co.,  to  whom  the  plaintiffs  had  given  their  promissory  note,  which  M.  & 
Co.  had  indorsed  to  a  third  party.  When  the  transfer  of  the  bill  of  lading 
was  made,  the  defendant  gave  a  receipt,  by  which  it  was  stipulated  that  the 
flour  was  to  be  used  as  security  for  the  plaintiffs'  note,  and  that  the  sale  of  it 
was  to  be  under  the  plaintiffs'  direction. 

When  the  note  became  due,  no  demand  for  its  payment  w$s  made  by  the 
holder,  and  the  defendant,  having  no  notice  of  any  intention  to  sell  the  flour, 
sold  it,  without  notice  to  the  plaintiffs. 

Held— that  this  was  a  pledge,  and  the  defendant  had  no  right  to  sell  the  flour 
until  payment  of  the  note  was  demanded,  and  after  reasonable  notice  to  the 
plaintiffs  of  the  intended  sale. 

Sdd  further — that  the  plaintiffs,  after  offering  to  pay  the  note  and  expenses, 
and  after  demand  of  the  flour,  might  maintain  an  action  against  the  defend- 
ant for  its  conversion. 

Where  the  cause  of  action  is  in  tort,  and  is  positively  sworn  to,  an  order  of 
arrest  will  not  be  disturbed  on  conflicting  affidavits  as  to  the  right  of  action. 

APPEAL  by  the  defendant  from  an  order  denying  a  motion 
to  vacate  order  of  arrest  or  to  reduce  amount  of  bail. 

The  plaintiffs  were  makers  of  a  note  for  $562  25,  due  June 
13,  1861.  The  firm  of  Thomas  Monroe  &  Co.  received  this 
note  from  the  plaintiffs,  and  endorsed  it  to  Mason,  Lawrence 
&  Co.  •  After  the  endorsement,  Thomas  Monroe  &  Co.,  the  en- 
dorsees, made  an  assignment  to  the  defendant  for  the  benefit 
of  their  creditors.  The  day  before  the  note  matured,  one  of 
the  plaintiffs  applied  to  the  defendant  for  an  extension  of  time 
for  payment. 

The  plaintiffs  were  informed  that  Mason,  Lawrence  &  Co. 
neld  the  note,  and  that  the  defendant  had  no  control  over  it ; 
but  the  result  of  the  conversation  was,  that  the  plaintiffs  trans- 
ferred to  Saunderson  a  bill  of  lading  for  one  hundred  barrels  of 
flour,  then  in  New  York,  subject  to  freight  charges.  The  de- 
fendant gave  the  following  receipt  for  the  bill  of  lading : — 
"  New  York,  June  12,  1861.  Received  of  Jaroslauski  &  Bros. 
"  bill  of  lading  for  one  hundred  barrels  of  flour,  dated  Chicago, 
"  June  6th,  per  Buffalo,  which  I  agree  to  hold  as  security  for 
"  their  note  due  June  13th,  $562  25,  the  sale  of  which  is  under 


NEW  YORK— NOVEMBER,  1862.  233 


Jaroslauski  v.  Saunderson. 


"  their  direction.  Z.  W.  Saunderson,  Asssignee  of  Thomas 
"  Monroe  &  Co." 

Saunderson  then  informed  the  holders  of  the  note  of  the  re- 
ceipt of  the  flour  by  him,  and  of  the  purpose  for  which  he  had 
received  it,  and  they  withdrew  the  note  from  bank,  where  it 
had  been  placed  for  collection.  On  August  10,  1861,  no  de- 
mand having  been  made  on  the  plaintiffs  for  payment  of  the 
note,  and  no  notice  of  any  intention  to  sell  the  flour  having 
been  given  them,  the  defendant  sold  the  flour  for  the  then 
market  price — vis.  $4  35  per  barrel. 

On  December  24th,  1861,  the  plaintiffs  demanded  the  flour 
from  Saunderson,  and  made  him  an  offer  to  pay  the  note  and 
expenses.  He  informed  them  that  he  had  sold  the  flour.  On 
April  9th,  1862,  the  demand  and  offer  was  renewed,  and  the 
same  answer  made. 

Upon  this  the  plaintiffs  brought  an  action  against  Saunder- 
son i>^'on  verting  the  flour  to  his  own  use,  and  claimed  to 
recover  the  whole  value  of  the  flour,  which  they  fixed  at  $600. 
The  defendant  was  held  to  bail  in  $600  ;  and  a  motion  was 
made  to  discharge  him,  or  reduce  his  bail. 

The  Court,  at  Special  Term,  denied  the  motion  to  discharge 
the  defendant  from  arrest,  and  refused  to  reduce  his  bail,  HJL- 
TON  J.  rendering  the  following  opinion : 

HILTON  J. — The  receipt  given  by  the  defendant  at  the  time 
the  bill  of  lading  lor  the  flour  was  transferred  to  him,  clearly 
shows  that  the  transfer  was  made  and  intended  for  collateral 
security  for  the  payment  of  the  note  held  by  Mason,  Lawrence 
&  Co.,  to  whom  it  had  been  previously  transferred  by  Thomas 
Monroe  &  Co.  There  was  no  special  power  of  sale  given  to  the 
defendant,  but,  on  the  contrary,  the  receipt  indicates  that  the 
plaintiffs  reserved  to  themselves  the  right  to  control  and  direct 
any  disposition  which  was  to  be  made  of  the  flour. 

The  transaction  was  clearly  a  pledge,  requiring  a  demand  of 
the  plaintiffs  to  be  first  made  for  the  payment  of  the  note,  to 
authorize  a  sale  of  the  flour ;  and,  in  addition,  the  plaintiffs  were 
entitled  to  reasonable  and  personal  notice  of  the  sale  intended. 

It  appears  that  neither  notice  to  redeem,  nor  notice  of  the 
sale,  was  given  the  plaintiffs,  and  it  thus  became  optional  with 
them  to  treat  such  an  unauthorized  disposition  of  their  proper- 
ty, as  the  affidavits  show  has  been  made  by  the  defendant,  as 


234  COUKT  OF  COMMON  PLEAS. 

Fisher  v.  Merwin. 

a  wrongful  conversion  of  it,  and  maintain  an  action  of  trover 
for  its  value.  Stearns  v.  Marsh,  4  Denio  227.  The  papers 
submitted  show  that  this  is  such  an  action. 

Therefore,  the  motion  to  vacate  the  order  of  arrest  must  be 
denied. 

From  the  order  denying  the  motion,  the  defendant  appealed 
to  the  General  Term. 

,i!i    •  ?..<A 

Buckham,  Van  Cott  &  Bangs,  for  appellants. 
Abbott  &  Fuller,  for  respondent. 

BY  THE  COURT. — BRADY,  J. — In  addition  to  the  reasons  as- 
signed by  Judge  HILTON,  in  denying  the  motion  to  discharge 
the  order  of  arrest  in  this  case,  it  may  be  said  that  the  cause 
of  action  is  in  tort,  and  that  in  such  cases  where  the  claim  is 
sworn  to  positively,  the  order  of  arrest  will  not  be  disturbed  on 
conflicting  affidavits  as  to  the  right  of  action.  The  merits 
cannot  be  considered  and  disposed  of  upon  affidavits. 

The  order  of  the  Special  Term  must  be  affirmed  with  $10 
costs. 


FISHER  v.  MERWIN  and  BRAY. 

Where  a  vendor,  at  the  time  of  the  sale,  agrees,  that  if  the  goods  when  deliv- 
are  inferior  to  the  sample,  they  may  be  exchanged,  it  is  a  conditional  sale, 
and  the  inferiority  of  the  goods  is  no  defence  to  an  action  for  the  price. 
The  vendee  should,  on  discovering  the  quality  of  the  goods,  tender  them 
back  to  the  vendor,  or  at  least  notify  him  of  the  defect ;  and  failing  to  do 
BO,  he  is  estopped  from  denying  their  value. 

This  action  was  brought  to  recover  the  price  of  certain  pis- 
tols sold  by  the  plaintiff  to  the  defendants.  The  defendants 
set  up  ;  First,  that  the  sale  was  by  samples,  and  that  the  pistols 
delivered  were  inferior  to  the  samples,  and  Secondly,  that  the 


NEW  YOKE— NOYEMBEK,  1862.  235 


Fisher  v.  Merwin. 


sale  was  brought  about  by  false  representations  of  the  vendor. 
On  the  trial,  it  appeared  that  the  defendants  had  examined 
the  samples,  and  had  been  informed  by  the  plaintiff,  that  he, 
the  plaintiff,  was  no  judge  of  pistols ;  that  they  were  repre- 
sented to  plaintiff  as  good,  and  if  they  were  not  equal  to  the 
samples,  could  be  exchanged,  and  that  a  portion  of  the  pistols 
had,  under  this  sale,  been  actually  exchanged.  Evidence  of 
the  inferiority  of  the  pistols  was  offered,  and  also  evidence  to 
show  false  representations  on  the  part  of  the  plaintiff.  The 
evidence  was  excluded,  and  judgment  given  for  plaintiff. 

From  this  judgment  the  defendant  appealed. 

BY  THE  COURT. — BRADY,  J. — The  defendants  urged  as  de- 
fences in  this  case  :  First,  that  the  sale  was  by  samples,  and 
that  the  pistols  delivered  were  inferior  to  the  samples ;  Sec- 
ondly, that  the  sale  was  accomplished  by  false  representations 
as  to  the  cost  of  the  pistols.  The  plaintiff  testified  that  the 
defendants  examined  the  samples,  that  he  said  he  supposed 
the  rest  were  like  them,  that  he  told  them  he  was  no  judge, 
but  that  the  pistols  were  represented  to  him  as  good  and  mer- 
chantable, and  if  not  so,  could  be  exchanged.  The  defendants 
did  not  deny  these  statements  of  the  plaintiff.  The  defendant 
Merwin  did  not  deny  that  the  pistols  to  be  delivered  could  be 
exchanged,  if  not  equal  to  the  sample.  On  the  evidence 
therefore  the  safe  was  a  conditional  one,  the  defendants  having 
the  right  to  exchange  any  of  the  pistols  not  equal  to  the 
sample.  For  this  reason,  the  first  defence  interposed  failed, 
and  the  questions  excluded  relating  to  it  were  properly  rejected. 
It  may  be  said  in  addition  and  as  corroborative  of  the  plain- 
tiff's statement,  that  the  defendants  did  exchange  some  of  the 
pistols  delivered,  but  made  no  offer  to  exchange  the  lot  for  the 
price  of  which  this  action  was  brought.  The  evidence  of  the 
defendant,  Merwin,  also  shows,  that  the  purchase  was  based 
upon  the  quality  of  the  pistols  as  shown  by  the  samples,  and 
not  upon  the  representation  of  the  plaintiff  as  to  the  cost  of 
them.  He  does  not  state  that  he  was  induced  to  give  the 
price  named  by  the  representation  of  the  plaintiff  as  to  the 
cost  of  the  pistols,  but  said,  "  plaintiff  showed  me  a  sample  of 


236  COURT  OF  COMMON  PLEAS. 

Magnum  v.  Farrington. 

pistols,  which  was  a  very  good  one.  I  said  if  they 
were  equal  to  the  sample  1  would  take  the  lot."  For  this 
reason,  I  think  the  questions  which  related  to  that  de- 
fence were  properly  excluded.  The  plaintiff  agreed  to 
exchange  the  pistols  if  not  equal  to  the  sample,  and  the  defen- 
dant agreed  to  purchase  if  the  pistols  to  be  delivered  were 
like  the  sample  shown.  The  plaintiff  made  no  warranty  and 
the  defendant  a  conditional  agreement.  The  plaintiff's  state- 
ment is  not  denied,  and  the  defendant  was  not  bound  to  accept. 
The  defendant  was  bound  to  return  the  goods  in  such  a  case 
or  notify  the  plaintiff  of  the  alleged  defect,  which  he  did  not 
do.  For  these  reasons  the  judgment  should  be  affirmed. 


SYLVESTER  S.  MANGUM  v.  HARVEY  P.  FARRINGTON. 

The  right  to  distrain  for  wharfage  was  not  taken  away  by  the  Act  of  1846, 
abolishing  distress  for  rent,  nor  by  the  act  of  1860  "  in  relation  to  the  rates 
of  wharfage,"  &c.  The  reference,  in  the  latter  act,  to  section  207  of  the  Act 
of  April  9th,  1813,  is  clearly  a  mistake,  and  the  statute  being  a  remedial  one 
will  be  construed  as  a  reference  to  section  217  of  the  same  act. 

A  written  contract  may  be  interpeted  by  the  local  customs  in  reference  to 
which  it  was  made,  and  it  is  error  to  exclude  evidence  of  such  customs. 

As  between  the  lessor  of  a  bulkhead  and  the  lessor  of  the  adjoining  pier,  evi- 
dence of  the  custom  of  the  port  is  admissible  to  show  how  far  wharfage  is 
collectible  for  the  use  of  bulkhead,  and  to  what  extent  for  the  use  of  the  pier. 

The  defendant  in  this  case,  being  the  lessee  of  the  pier  at 
the  foot  of  Laight  street,  levied  upon  property  in  two  barges 
for  his  wharfage.  It  appeared  upon  the  trial  that  the  two 
barges  were  not  fastened  to  the  pier,  but  lay  in  the  slip,  and 
that  they  were  third  or  fourth  from  the  bulkhead.  The  plain- 


NEW  YOKK— NOVEMBER,  1862.  237 

_  Mangum  v.  Farrington. 

tiff,  who  was  also  lessee  of  the  bulkhead  in  front  of  which  the 
barges  lay,  brought  suit  to  recover  the  articles  levied  upon, 
claiming  that  the  remedy  by  distress  was  abolished,  and  also 
that  he,  as  lessee  of  the  bulkhead,  was  entitled  to  the  wharf- 
age. The  defendant  offered  proof  of  a  custom,  that  the  lessee 
of  the  bulkhead  should  be  allowed  to  collect  wharfage  from 
only  the  boat  alongside  the  bulkhead  and  the  next  boat 
beyond.  This  evidence  was  excluded  and  exception  taken.  It 
was  admitted  that  the  proceedings  on  the  distress  were  regu- 
lar, if  the  remedy  by  distress  was  still  allowed.  Judgment 
was  given  for  the  plaintiff,  and  the  defendant  appealed. 

BRADY  J. — The  defendant  was  the  lessee  of  the  small  pier, 
at  the  foot  of  Laight  street,  North  River,  and  the  plaintiff  was 
the    lessee    of  the    bulkhead    between   Hubert   and    Laight 
streets,  North  river,  on  each  side  of  the  small  pier.     The  barges 
Huron  and  Raymond  were  in  the  slip,  and  third  or  fourth  from 
the  bulkhead,  and  "  lay  next  to  the  little  pier  at  foot  of  Laight 
street."      There  were  at  least  two  vessels  between  them  and 
the    bulkhead,  and  the  defendant  claimed  to  be  entitled  to 
wharfage  for  those  barges,  and  to  the  right  to  distrain  for  it,  if 
not  paid.     He  did  distrain,  and,  to  recover  the  property  which 
he  took  by  distress,  this  action  was  brought.     The  proceedings 
upon  the  distress  were  admitted  to  be  regular.     The  plaintiff 
insisted,  however,  that  the  defendant  was  not  entitled  to  wharf- 
age, but  if  entitled  to  it  could  not  make  it  by  distress,  that  remedy 
having  been  abolished  by  statute.     The  barges  named   were 
not  fastened  to  the  defendant's  pier,  and  his  right  to  wharfage 
seems  to  depend  upon  an  alleged    universal  custom,  in   this 
city,  by  which  the  owner  or  lessee  of  the  bulkhead,  is  not 
allowed  to  collect  wharfage  for  more  than  two  vessels — that  is, 
the  vessel  alongside  of  the  bulkhead,  and  one  outside  of  her. 
The  defendant  offered  to  prove  such  a  custom,  but  ail  objection 
being  made,  the  proof  was  excluded  and  judgment  given  for 
the  plantiff.     I  think  the  proof  should  have  been  received. 
The  bulkhead  is  a  structure  built  up  along  the  river  bank,  and 
piers  extend  from  it  at  right  angles  toward  the  channel  of  the 
river.     If  the  lessee  of  the  bulkhead  could  locate  his  vessels 
in  a  line  from  the  bulkhead  to  the  end  of  the  pier,  the  use  of 
the  pier  could  be  destroyed,  and  if  the  lessee  of  the  pier  could 


238  COURT  OF  COMMON  PLEAS. 

Mangum  v.  Farrington. 

dispose  of  his  vessels  laterally  and  consecutively  from  the  pier 
without  restriction,  the  use  of  the  bulkhead  would  be  compara- 
tively valueless.  The  lease  is  silent  on  this  subject,  and  it 
would  seem,  under  the  circumstances,  to  be  one  for  interpreta- 
tion by  a  local  custom.  Such  a  custom  may  not  only  be 
resorted  to  in  explanation  of  contracts,  but  the  contracting 
parties  are  supposed  to  have  made  their  engagements  in  refer- 
ence to  it. 

Every  demise  between  landlord  and  tenant  in  respect  to 
matters  on  which  tbe  parties  are  silent,  may  be  fairly  open  to 
explanation  by  the  general  usage  and  custom  of  the  country 
or  of  the  district  where  the  land  lies.  Every  person  is  sup- 
posed to  be  cognizant  of  the  custom,  and  to  contract  with  a 
tacit  reference  to  it.  Vanneso  v.  Paoard^  2  Peters  IT.  S.  R.  148  ; 
Wigglesworth  v.  Dalleson,  Douglass,  201 ;  Wilcox  v.  TF0o<f,  9 
Wend.  34-6. 

The  plaintiff  in  taking  his  lease  of  the  bulkhead,  and  the  de- 
fendant in  taking  his  lease  of  the  small  pier,  must  be  presumed 
to  have  taken  it  with  knowledge  of  the  custom,  and  are  as 
much  controlled  by  it,  as  if  the  effect  were  stated  in  their  re- 
spective leases.  If  therefore  the  right  to  distrain  for  the  wharf- 
age claimed  existed,  when  the  right  was  exercised,  the  judg- 
ment should  be  reserved. 

HILTON  J. — By  section  217  of  the  "  act  to  reduce  several 
laws  relating  particularly  to  the  City  of  New  York  into  one 
act,  passed  April  9th,  1813  (see  2  R.  Laws,  430 ;  Davies'  Laws, 
553),  it  was  provided,  that  when  any  vessel  has  laid  twenty- 
four  hours  at  any  wharf,  and  the  master  or  owner  refuses  or 
neglects  to  pay  the  wharfage,  or  give  security  therefor, 
being  thereunto  required  by  the  owner  or  wharfinger,  by 
notice  in  writing  left  on  board  with  the  mate  or  one  of  the 
hands  belonging  to  the  vessel,  it  shall  and  may  be  lawful  for 
the  owner  or  wharfinger  to  distrain  for  such  wharfage,  on  any 
goods  or  chattels  found  on  board  such  vessel,  and  so  from  time 
to  time  as  often  as  twenty-four  hours'  wharfage  shall  become 
due,  and  the  goods  and  chattels  so  distrained,  to  sell  and  dis- 
pose of,  in  the  same  manner  as  is  provided  in  the  case  of  rent. 

Thus  where  the  wharfage  is  not  paid  or  secured,  the  owner 
of  the  wharf  may  from  time  to  time,  and  as  often  as  twenty- 


NEW  YORK— NOVEMBER,  1862. 


Mangum  v.  Farrington. 


four  hours'  wharfage  becomes  due,  proceed  on  board  the  vessel 
and  take  therefrom  and  keep  sufficient  goods  and  chattels,  as 
a  pledge  and  security  for  the  payment  of  the  wharfage  so  dis- 
trained for,  the  distress  being  in  all  cases  proportioned  to  the 
amount  owing.  (3  Black.  C.  12  ;  BurriWs  Law  Dicffy — Dis- 
train.) 

If  the  wharfinger  desires  to  sell  and  dispose  of  the  goods  and 
chattels  thus  acquired  by  distress,  he  is  required  to  proceed  in 
conformity  with  the  statute  in  respect  to  sales  of  property  taken 
upon  a  distress  for  rent ;  that  is,  give  five  days  public  notice  of 
sale,  and  at  the  day  and  place  appointed  in  the  notice,  sell  the 
goods  at  public  auction  for  the  best  price  that  can  be  obtained. 
Of  course,  after  applying  the  proceeds  to  the  payment  of  the 
expenses  of  the  distress  sale  and  the  wharfage,  the  owner  will 
be  entitled  to  have  any  surplus  returned  to  him.  (See  2  R.  S. 
sec.  26,  504.) 

The  act  of  1846,  p.  369,  abolishing  distress  for  rent,  in  no 
way  affects  the  right  thus  given  Jo  distrain  for  wharfage,  nor 
does  it  in  terms  repeal  the  26th  section  of  the  R.  S.  to  which  I 
have  referred.  The  language  used  in  the  act  of  1846  is  merely 
"  Distress  for  rent  is  hereby  abolished,"  thus  leaving  it  to  be 
inferred  that  the  legislature  did  not  intend  by  it  to  repeal 
absolutely,  and  for  every  purpose,  all  the  provisions  of  the 
Revised  Statutes  then  existing  relating  to  proceedings  upon  a 
distress  for  rent,  because  those  provisions  were  applicable  in 
some  respects  to  cases  of  distress  like  the  one  in  question  for 
non-payment  of  wharfage.  But  even  if  all  those  provisions 
had  been  expressly  repealed,  it  would  not  have  affected  the 
right  of  the  wharfinger  to  distrain  and  sell  under  the  act  of 
1813,  as  reference  might  still  be  had  to  a  repealed  statute  for 
the  purpose  of  ascertaining  the  manner  in  which  goods  and 
chattels  thus  taken  in  pledge  under  the  authority-of  an  existing 
law  might  be  disposed  of. 

Nor  can  it  be  said  that  the  "  Act  in  relation  to  the  rates  of 
wharfage,"  &c.  passed  April  10, 1860  (See  Laws,  1860,  p.  416), 
took  away  or  in  any  manner  affected  or  abrogated  this  right ; 
but  on  the  contrary,  in  my  opinion  the  right  was  expressly 
affirmed  by  it.  This  act,  after  establishing  a  higher  rate  of 
wharfage  than  was  theretofore  allowed,  declaring,  however, 


COURT  OF  COMMON  PLEAS. 


Mangum  v.  Farrington. 


that  it  should  not  affect  the  rates  chargeable  by  the  then  exist- 
ing laws  on  lighters,  canal  boats,  or  barges  (See  chap.  266, 
Laws  1852  ;  Davies'  Laws,  p.  1089),  and  enacting  that  the 
wharfage  should  be  a  lien  on  the  vessel,  provided  by  sec.  7, 
that  the  collection  of  the  rates  of  wharfage  thereby  established 
shall  be  enforced  in  the  manner  prescribed  in  the  207th  section 
of  the  act  of  April  9th,  1813  (supra). 

This  reference  to  the  207th  section  is  clearly  a  mistake  of 
the  framers  of  the  law,  the  217th  section  being  manifestly  the 
one  intended.  Therefore,  in  cases  of  remedial  statutes  like 
this,  when  it  is  obvious  that  a  special  remedy  was  designed  to 
be  given  to  a  particular  class  of  persons  in  certain  cases,  it  is 
the  duty  of  courts  to  apply  a  liberal  and  equitable  rule  of  con- 
struction, even  though  the  construction  put  upon  the  statute  be 
contrary  to  the  letter  of  it.  (Dwarris  onStat.llS.)  A  thing 
within  the  letter  of  a  statute  is  not  within  the  statute,  unless  it 
be  within  the  intention  of  the  makers.  (The  People  v.  Utica 
Ins.  <70.,15  Johns.  R.  358,'379  •  Jackson  v.  Collins,  3  Cowen,  89.) 

The  propriety  of  this  rule  is  illustrated  in  the  present  in- 
stance. Section  207  thus  referred  to  relates  to  cases  where  a 
party  has  been  fined  by  a  magistrate  for  breaking  any  glass 
lamp,  window-porch,  knocker,  or  other  fixture  in  the  oity,  and 
refuses  payment  of  the  fine  or  forfeiture  imposed  therefor, 
and  there  is  no  sufficient  distress  on  which  the  same  may  be 
levied,  he  may  be  committed  to  Bridewell  by  the  magistrate, 
there  to  remain  without  bail  or  mainprize  for  the  space  of  two 
mouths,  or  until  such  forfeiture  and  costs  are  paid  :  and  when 
the  offence  is  committed  by  any  slave,  apprentice,  or  ser- 
vant, the  forfeiture  shall  be  paid  by  the  master,  or  in  default 
thereof,  the  servant  may  be  so  committed.  It  will  not  for  a 
moment  be  supposed  that  the  legislature  designed  to  incorpo- 
rate in  the  act  of  1860,  as  a  means  for  collecting  the  rates  of 
wharfage  therein  allowed  to  wharfowners,  provisions  like  these, 
so  clearly  inapplicable  to  the  collection  of  wharfage,  and  espe- 
cially when  the  forfeiture  thus  imposed  goes  toward  supplying 
new  lamps  and  for  the  support  of  the  poor  (see  section  206). 

We  should  therefore  hold  that  section  217  of  the  act  of  1813 
•was  the  one  intended  to  be  referred  to,  and  that  under  its  pro- 
visions the  defendant  was  authorized  to  proceed  by  distress 
for  the  wharfage  due  him  in  the  manner  admitted  at  the  trial. 


NEW  YORK— NOVEMBER,   1862,  211 

Benedict  v.  Dunning. 

Its  non-payment  gave  him  the  right.to  proceed  on  board  the 
vessels  and  distrain  upon  the  property  in  question,  and  the 
plaintiff  was  not  entitled  to  its  return  without  a  payment  or 
tender  of  the  amount  arising  for  wharfage,  and  the  expenses 
necessarily  incurred  in  making  the  distress.  This  not  having 
been  done,  he  has  no  cause  of  action,  and  the  judgment  of  the 
Justice  to  the  contrary  should  be  reversed. 

In  conclusion,  I  will  add  that  I  fully  concur  in  the  views  of 
Judge  Brady  respecting  the  admissibility  of  the  evidence 
offered  by  the  defendant  at  the  trial,  upon  the  question  of 
usage,  and  as  to  the  effect  of  that  evidence  if  it  had  been, 
admitted. 

Judge  DALY  concurred. 


ABNER  BENEDICT  and  WILLIAM  E.  THORNE  v.  WILLIAM 
DUNNING. 

The  defendant  agreed  to  take  a  loan  which  had  been  negotiated  by  the 
plaintiffs  for  one  Schoonmaker,  and  to  pay  the  expenses  incurred  by  the 
plaintiffs  in  searching  the  title  to  the  premises  on  which  the  loan  was  to  be- 
made,  and  also  to  pay  for  services  rendered  by  the  plaintiffs. 

Held,  That  the  agreement  was- not  void  as  being  collateral,  and  without  con- 
sideration. 

Appeal  by  the  defendant  from  a  judgment  of  the  Seventh 
District  Court. 

The  plaintiffs  agreed  to  use  their  influence  in  causing  a  loan 
to  be  made  to  one  Schoonmaker  of  $7000  upon  certain  property 
in  Broadway.  Upon  this  property  defendant  held  a  third 
mortgage.  A  second  mortgage  had  passed  to  a  decree  of  fore- 
closure, and  defendant  expecting  that  he  would  have  to  pur- 
chase at  the  sale,  wanted  the  $7000',  to  enable  him  to  pay  off 
the  prior  mortgages,  taxes,  etc.  Plaintiffs  made  the  requisite- 
searches,  but  Schoonmaker  not  being  in  a  condition  to  perform 
the  agreement  on  his  part  for  the  loan,  the  defendant,  [being: 
16 


242  COURT    OF  COMMON    PLEAS. 

Benedict  v.  Dunning. 

in  need  of  money  to  pay  off  the  two  mortgages  prior  to  his] 
went  to  plaintiff's  office,  where  it  was  agreed  by  parol  that 
plaintiffs  should  cause  the  $7000  to  be.  loaned  to  defendant  on 
the  Broadway  property,  and  to  make  a  further  search  as  to  the 
foreclosure  proceedings,  and  further  to  cause  the  $7000  to  be  kept 
for  the  defendant  until  it  was  determined  whether  defendant 
became  purchaser  on  such  foreclosure  sale.  Defendant  agreed 
to  take  said  loan,  and  pay  plaintiffs  for  their  services,  provided 
he  became  the  purchaser  on  the  sale.  Plaintiffs  completed  the 
search,  and  caused  the  money  to  be  retained  and  tendered  to 
defendant.  .Defendant  became  the  purchaser  on  such  sale,  but 
refused  to  take  the  loan,  or  pay  plaintiffs  for  their  services. 

Judgment  was  renctered  for  the  plaintiff,  and  defendant  ap- 
pealed to  the  Court. 

George  W.  Stevens  for  appellant. 

I.  The  promise  of  the  appellant  was  a  collateral  undertaking 
to  the  original  liability  of  Schoonmaker,  and  not  being  in  writ- 
ing is  void  (2  R.  S.  135,  §  2;  Ccvrville  v.  Crane,  5  Hill,  483). 

II.  The  promise  of  the  appellant  to  pay  the  respondents  for 
the  services  was  in  any  event  contingent  upon  his  accepting 
the  loan.     As  he  did  not  accept  the  loan,  no  original  liability 
upon  his  part  attached. 

III.  The  services  of  the  respondents  were  already  performed 
for  Schoonmaker.   They  did  not  surrender  or  give  up  their  claim 
against  him,  and  hence  there  can  be  no  original  liability  of  the 
appellant  to  them  for  the  same  services  for  which  Schoonmaker 
is  still  liable  to  them  (Mallory  v.  Gilldt,  21  N.  Y.  li.  412). 

Benedict  and  Thorn  for  respondents. 

BY  THE  COURT. — BRADY,  J. — In  this  case  the  evidence  shows 
that  the  defendant  agreed  to  take  a  loan  which  had  been 
negotiated  for  one  Schoonmaker,  and  to  pay  the  expenses  in- 
curred by  the  plaintiffs  in  searcliing  the  title  to  the  premises  on 
which  the  loan  was  to  be  made,  and  also  to  pay  for  the  services 
rendered  by  the  plaintiffs.  It  is  true  that  Schoon maker  :v<is 
liable  to  the  plaintiffs,  but  the  defendant  assumed  the  respoti&i- 


NEW  YORK— NOVEMBER,   1862.  243 

McLaren  v.  Mayor,  &c.  of  New  York. 

bility  which  had  accrued  in  consideration  of  the  transfer  to  him 
of  the  subject  matter  of  such  liability,  and  was,  by  his  arrange- 
ment with  the  plaintiffs,  to  receive  the  entire  benefit  of  such 
expenditure  as  had  been  made,  and  such  services  as  had  been 
performed  for  Schoonmaker.  The  consideration  of  the  promise 
by  Schoonmaker  was  the  loan,  and  such  was  also  the  consider- 
ation of  the  promise  by  the  defendant.  It  was  a  new  promise, 
to  the  effect  that  if  the  plaintiffs  would  transfer  the  loan  to  him, 
he  would  pay  them  the  same  charge  that  they  would  receive 
from  Schoonmaker  had  the  loan  been  made  to  him.  Not  only 
was  that  the  agreement,  but  the  defendant  also  promised  to 
pay  $25  for  such  services  in  addition  as  would  be  necessary  to 
make  the  transfer  in  due  form  to  secure  the  mortgagee.  The 
money  was  ready,  and  was  kept  in  abeyance,  awaiting  the  con- 
venience of  the  defendant,  and  subject  to  his  order.  This  was 
a  further  consideration  for  the  promise.  I  think  this  case  is 
controlled  by  the  principles  laid  down  in  Mallory  v.  Gilletty 
21  N.  Y.  Rep.,  412,  and  that  the  judgment  should  be  affirmed. 

Judgment  affirmed. 


JOHN  J.  McLABEN  v.  THE  MAYOR,  ALDEKMEN  AND  COMMONALTY 
or  NEW  YORK. 

The  City  Inspector  of  the  city  of  New  York,  being  authorized  by  a  resolution 
of  the  Board  of  Health  to  employ  the  plaintiffs  assignor  "  to  remove  tem- 
porarily, or  until  further  ordered  by  the  Board  or  the  Common  Council,  all 
the  contents  of  the  sinks  and  privies  of  the  city  beyond  the  harbor,"  made 
a  contract  accordingly,  fixing  the  rate  of  compensation,  as  directed  by  the 
resolution,  at  fifty  dollars  per  weed:  for  the  first  six  months,  and  forty  dollars 
per  week  for  the  time  after  that  period. 

Held,  That  such  contract  was  within  the  power  conferred  on  the  Board  of 
Health  by  section  6  of  the  act  of  1850,  ch.  275,  title  3,  and  section  27  of  the 
act  of  1857,  ch.  446 ;  and  the  Corporation  was  chargeable  with  the  expenses 
arising  from  the  employment  of  the  plaintiffs  assignor. 

ffdd  further,  That  it  being  competent,  by  the  terms  of  the  contract,  for  the 
defendants  or  the  Board  of  Health  to  terminate  it  at  any  moment,  it  could 
not  be  deemed  a  continuing  contract,  or  as  invading  the  powers  of  the 
Common  Council  as  prescribed  by  the  charter,  to  make  contracts  for  the 
same  work. 


2  ±4  COURT  OF  COMMON  PLEAS. 

McLaren  v.  Mayor,&c.  of  New  York. 

Held  further,  That  such  contract  was  not  in  violation  of  section  38  of  the 

charter  of  1857,  requiring  all  contracts  involving  an  expenditure  of  over 

$250  to  be  founded  upon  sealed  bids  and  proposals. 
It  seems,  That  the  provisions  of  section  38  of  the  charter  of  1857  apply  only  to 

contracts  to  be  let  by  authority  of  the  Common  Council,  and  were  never 

intended  to  apply  to  the  Board  of  Health. 
The  Courts  have  no  power,  in  collateral  proceedings,  to  inquire  whether  the 

facts  upon  which  a  Board  of  Health  determines  a  thing  to  be  a  nuisance 

justify  its  conclusion. 

Appeal  by  the  plaintiff  from  a  judgment  entered  on  the 
report  of  a  referee  at  Special  Term. 

The  action  was  brought  by  the  plaintiff  as  the  assignee  of 
one  Woodruff,  to  recover  the  sum  of  $3,360.80  from  the  Corpo- 
ration for  work  and  services  in  removing  beyond  the  harbor  the 
contents  of  the  sinks  and  privies  of  the  city.  The  contract 
under  which  the  services  were  rendered  was  made  with  Wood- 
ruff by  the  City  Inspector,  under  the  authority  of  a  resolution 
of  the  Board  of  Health.  The  agreement  thus  entered  into  was 
as  follows  : — "  Agreement  made  this  12th  day  of  June,  in  the 
year  one  thousand  eight  hundred  and  fifty-eight,  between  Wm. 
II.  Woodruff,  of  Newark,  in  the  State  of  New  Jersey,  of  the 
first  part,  and  George  W.  Morton,  city  inspector  of  the  city  of 
New  York,  of  the  second  part :  Whereas,  by  a  resolution 
adopted  by  the  Board  of  Health  of  the  city  of  New  York,  at  a 
meeting  held  by  them  at  said  city,  on  the  llth  day  of  June,  in 
the  year  1858,  it  was  Resolved,  '  That  the  city  inspector  be  em- 
powered to  employ  Wm.  H.  Woodruff  to  remove  temporarily, 
or  until  further  ordered  by  this  Board  or  the  Common  Council, 
all  the  contents  of  the  sinks  and  privies  of  this  city  beyond  the 
harbor,  without  nuisance,  provided  the  rates  of  compensation, 
including  all  expenses,  shall  not  exceed  the  sum  of  fifty  dollars 
per  week  for  boats  of  fifty  tons  burthen,  and  in  the  same  ratio 
for  boats  of  larger  proportions,  and  that  the  city  inspector  be 
directed  to  order  the  work  of  removing  the  night  soil  to  be 
commenced  to-morrow  evening.' 

"  Now,  therefore,  this  agreement  witnesseth,  that,  in  con- 
formity with  the  above  resolution,  the  said  William  H.  Wood- 
ruff has  agreed  with  the  said  party  of  the  second  part  as 
follows  : 

"  That  he,  the  said  William  H.  Woodruff,  will,  as  long  as  the 


NEW  YORK— NOVEMBER,   1862.  245 

McLaren  v.  Mayor  &c.  of  New  York. 

city  inspector  shall,  nnder  said  resolution,  employ  him  to  do 
the  work  aforesaid,  do  and  perform  the  same  as  is  provided  for 
and  upon  the  terms  stated  in  said  resolution,  and  in  case  he 
shall  be  employed  to  do  such  work  for  the  space  of  six  months 
from  and  including  the  date  hereof,  the  price  to  be  paid  to  him 
therefor  shall  be  only  forty  dollars  for  boats  of  fifty  tons  bur- 
then, and  in  the  same  ratio  for  boats  of  larger  proportion,  in- 
stead of  fifty  dollars  as  is  provided  in  said  resolution. 

"  And  the  said  party  of  the  second  part  hereby,  on  behalf  of 
the  city  of  New  York,  and  in  pursuance  of  said  resolution, 
agrees  with  the  said  Woodruff  as  follows  : — That  for  the  ser- 
vices herein  on  the  p  irt  of  said  Woodruff,  agreed  to  be  done 
and  performed,  he,  tlie  said  Woodruff,  shall  be  entitled  to 
receive  as  a  compensation  the  price  or  rate  stated  in  said  reso- 
lution, prov  ded,  however,  that  if  he,  the  said  Woodruff,  shall 
be  employed  as  aforesaid  for  the  term  of  six  months,  he  shall 
be  entitled  to  receive  from  the  said  city  of  New  York  only  the 
Burn  of  forty  dollars  per  week,  as  is  hereinbefore  in  the  agree- 
ment on  the  part  of  said  Woodruff  contained. 

(Signed)  "  W.  H.  WOODRUFF. 

"  City  Inspector's  Department. 

"  This  will  certify,  that  so  far  (and  by  virtue  of  authority  of 
the  Board  of  Health)  as  the  foregoing  resolution  may  empower 
me  so  to  do,  that  I  have  employed  Mr.  Wm.  II.  Woodruff  to 
furnish  vessels  to  receive  and  remove  night  soil  from  the  city 
on  the  terms  above  set  forth. 

(Signed)  "  GEO.  W.  MORTON, 

"  City  Inspector." 

The  work  was  performed  by  Woodruff,  and  the  bills  therefor 
were  examined  and  respectively  approved  by  the  city  in- 
Bpector. 

The  case  was  referred  to  Hamilton  W.  Robinson,  Esq.  as 
sole  referee  to  hear  and  determine.  He  found  as  a  conclusion 
of  law  that  u  the  said  Board  of  Health  had  no  power  or  autho- 
rity to  authorize  the  said  city  inspector  to  enter  into  the  said 
agreement  with  the  said  William  11. Woodruff,  for  or  on  behalf 
of  the  defendants,  or  to  bind  the  defendants  in  relation  thereto," 
and  that  the  defendants  were  entitled  to  judgment  in  their 
favor. 


246  COURT  OF  COMMON  PLEAS. 

McLaren  v.  Mayor  &c.  of  New  York. 

The  plaintiff  appealed  from  the  judgment  entered  on  the 
report  of  the  referee  to  the  General  Term,  where  the  same  was 
affirmed  with  opinion  of  the  court  by  — 

DALY,  F.  J. — I  have  no  doubt  of  the  power  of  the  Board  of 
Health  to  direct  an  act  to  be  done,  involving  the  necessity  of 
entering  into  a  contract  in  a  matter  coming  within  the  pre- 
scribed sphere  of  its  duties,  and  that  a  contract  thus  entered 
into  is  binding  upon  the  Corporation  ;  I  also  agree  that  there 
are  cases  in  which  that  body,  or  the  Common  Council,  may 
authorize  contracts  to  be  entered  into  involving  a  larger  ex- 
penditure than  $250,  without  advertising  for  sealed  proposals, 
as  required  by  the  act  of  1S57  [Laws  of  1857,  vol.  1,  p.  68(5, 
§  38].  We  held,  in  Smith  v.  The  Mayor,  &c.  of  New  York, 
that  a  resolution  of  the  Common  Council,  authorizing  members 
of  committees  to  hire  carriages  when  engaged  in  transacting 
the  business  of  their  committees,  conferred  a  valid  authority  to 
engage  carriages  when  thus  occupied  ;  that  contracts  of  such 
a  nature  were  not  designed  to  be  embraced  by  the  act  of  1857, 
although  the  amount  expended  in  this  way  exceeded  $250. 
In  the  administration  of  the  affairs  of  the  city,  there  are  neces- 
sarily cases  in  which  it  was  never  intended  that  there  should  be 
ten  days'  advertisement  for  sealed  proposals  before  a  contract 
could  be  entered  into — cases  where,  from  the  nature  of  the 
things  to  be  done,  the  contract  must  be  entered  into  at  once. 
As  an  illustration,  an  action  was  tried  before  me  recently,  in 
which  it  appeared  that,  in  lowering  the  grade  of  one  of  the 
public  avenues  of  the  city,  a  number  of  trenches  were  suddenly 
exposed,  in  which  the  dead  had  been  buried  during  a  pestilence 
that  occurred  about  forty  years  ago.  When  the  excavation 
had  proceeded  to  a  certain  depth,  the  thin  wall  of  earth,  which 
had  previously  concealed  this  forgotten  place  of  sepulture, 
suddenly  gave  way,  and  piles  of  the  old  and  decayed  coffins, 
which  had  beeji  deposited  one  upon  the  other,  fell  in  a  mass 
into  the  avenue.  It  was  in  the  month  of  August,  and  the 
most  urgent  public  necessity  demanded  that  the  decayed 
coffins  and  their  pestilential  contents  should  be  removed,  with 
all  possible  expedition,  to  a  place  beyond  the  limits  of  the 
city.  The  City  Inspector  was  accordingly  directed  by  the 
Board  of  Health  to  engage  persons  at  once  to  do  so,  in  pur- 


NEW   YOEK— NOVEMBER,   1862.  247 

McLaren  v.  Mayor  &c.  of  New  York. 

suance  of  which  he  made  a  contract  involving  an  expenditure 
of  several  thousand  dollars,  and  I  had  no  hesitation  in  holding 
that  the  contract  so  made  was  valid  and  binding  upon  the  Cor- 
poration. But  the  provision  in  the  statute,  requiring  a  publi- 
cation for  ten  days  for  sealed  proposals,  must  be  complied  with, 
in  every  case  where  it  can  be  done  without  detriment  to  the 
public  interest ;  and  to  warrant  a  departure  from  it,  the  case 
must  be  one  of  public  necessity,  or  one  to  which  it  is  obvious 
the  statute  was  never  designed  to  apply.  The  present  is  not 
such  a  case.  The  resolution  of  the  Board  of  Health  directed 
the  City  Inspector  to  employ  the  plaintiffs  assignor  to  remove, 
temporarily  and  until  further  ordered,  all  the  contents  of  the 
sinks  and  privies  of  the  city  at  certain  specified  rates. 

This  resolution  was  passed  in  June,  1853,  and  under  it  a 
contract  was  entered  into  by  the  City  Inspector  with  the 
plaintiffs  assignor,  William  II.  Woodruff,  to  remove,  until 
further  ordered  by  the  Board  of  Health  or  the  Common  Coun- 
cil, all  the  contents  of  the  sinks  and  privius  of  the  city  at  cer- 
tain specified  rates.  This  was  a  contract  of  a  very  extensive 
nature,  involving  a  large  expenditure  of  money.  It  contem- 
plated the  possibility  of  his  employment  for  a  period  of  more 
than  six  months,  as  it  was  expressly  provided  that,  if  employed 
for  that  space  of  time,  the  rate  of  compensation  should  be  less, 
and  it  was  proved  in  the  case  that  Woodruff  entered  upon  the 
performance  of  the  work  the  day  after  the  resolution  was  pass- 
ed, and  continued  to  perform  it  until  the  18th  day  of  May, 
1859,  a  period  of  more  than  eleven  months,  and  the  plaintiff 
offered  to  show  that  the  Corporation  had  paid  for  the  work  so 
done  more  than  $18,000.  No  plea  of  public  necessity  could 
justify  the  Board  of  Health  in  contracting  for  so  extensive  an 
amount  of  work  as  this,  without  putting  up  the  contract  to 
public  competition,  in  the  manner  required  by  the  statute.  It 
would  have  involved  but  a  delay  of  ten  days  to  publish  the 
notice  required  by  statute  ;  and  as  it  was  but  the  beginning  of 
June,  there  coul^be  no  ground  in  public  necessity  tor  entering 
into  a  contract  of  such  a  nature  at  once.  The  conclusion  of 
the  Referee,  therefore,  was  correct,  and  the  judgment  enter- 
ed upon  his  report  must  be  affirmed.  It  has  been  urged  that 
the  statute  applies  only  to  contracts  made  by  the  authority  of 
the  Common  Council ;  but,  after  a  careful  examination  of  its 


248  COURT  OF  COMMON  PLEAS. 

McLaren  v.  The  Mayor  &c.  of  New  York. 

provisions  I  am  satisfied  that  it  applies  to  any  contracts  for 
work  furnished  for  the  Corporation  where  the  amount  to  be 
expended  exceeds  $250. 

The  work  here  was  done  for  the  Corporation,  of  which  the 
Board  of  Health  is  merely  a  co-ordinate  part. 

The  judgment  is  affirmed. 

On  the  motion  of  plaintiff,  a  re-argument  was  had  at  the 
next  General  Term,  when  the  judgment  was  reversed,  with 
opinion  of  the  Court  by  Hilton,  J. 

Charles  Jones  for  appellant. 

H.  H.  Anderson  for  respondents. 

BY  THE  COURT. — HILTON,  J. — At  d  meeting  of  the  Board  of 
Health  of  the  city  of  New  York,  on  June  llth,  1858,  at  which 
was  present  Mayor  Tieman,  twelve  aldermen,  and  sixteen 
councilmen,  the  following  preamble  and  resolution  was  passed, 
receiving  the  vote  of  the  Mayor,  seven  aldermen,  and  eleven 
councilmen,  the  remaining  members  present  voting  against  it : 

"Whereas, the  City  Inspector  has  reported  at  his  office  over 
one  thousand  sinks  and  privies  full,  and  no  provision  being 
made  by  the  Common  Council  for  the  carrying  away  of  their 
contents,  the  nuisance  has  become  intolerable.  Therefore, 
Resolved,  That  the  city  inspector  be  appointed  to  empower 
William  H.  Woodruff  to  remove  temporarily,  or  until  further 
ordered  by  this  Board  or  the  Common  Council,  all  the  contents 
of  sinks  and  privies  of  this  city  beyond  the  harbor,  without 
nuisance,  provided  the  rates  of  compensation  shall  not  exceed 
$50  per  week  for  boats  of  fifty  tons  burthen,  and  in  the  same 
ratio  for  boats  of  larger  proportions.  And  that  the  city  inspec- 
tor be  directed  to  order  the  work  of  removing  the  night  soil  to 
be  commenced  to-morrow  evening." 

Under  the  authority  of  this  resolution,  the  city  inspector 
entered  into  the  contract  by  it  directed  to  be  made,  providing, 
however,  that  if  the  employment  should  continue  for  a  term  of 
six  months,  the  compensation  should  be  only  at  the  rate  of  $40 
per  week,  instead  of  $50  for  each  boat. 

Woodruff  forthwith  entered  upon  the  performance  of  this 
•work  by  providing  the  necessary  boats,  etc.,  in  which  he  re- 
moved the  contents  of  all  sinks  and  privies  delivered  to  him  at 
the  wharf,  beyond  the  harbor  of  New  York  city,  and  without 


NEW  YORK— NOVEMBER,  1802.  249 

McLaren  v.  The  Mayor  &c.  of  New  York. 

nuisance.  He  thus  continued  down  to  and  including  May  18th, 
1859,  all  his  bills  for  work  and  services  under  the  contract 
having  been  approved  and  certified  by  the  city  inspector,  and 
the  work  declared  done  in  a  satisfactory  manner.  The  bills 
thus  approved  and  certified  for  the  period  of  time  from  April 
29th  to  and  including  May  18th,1859,  amounting  to  $3,360  80 
with  interest,  having  been  duly  assigned  to  the  plaintiff,  he 
brings  this  suit  for  their  recovery. 

At  the  trial  before  the  Referee,  after  these  facts  had  been 
established,  the  plaintiff  offered  to  prove  that  the  defendants 
had  paid  "Woodruff  for  all  the  work  done  by  him  under  the 
contract  prior  to  January  1st,  1859,  a  period  of  over  six  months, 
at  the  rate  specified.  That  for  a  portion  of  such  services  an 
action  had  been  commenced  against  the  defendants,  and  on 
November  29th,  1858,  a  judgment  was  recovered  against  them 
therein  by  default  for  $18,296.84,  which  was  paid  in  the  follow- 
ing April.  And  that  the  plaintiff,  when  he  purchased  the 
claim  in  this  suit,  knew  of  the  previous  payments  by  the  de- 
fendants and  of  the  said  judgment.  The  evidence  thus  offered 
was  ruled  out  by  the  referee,  and  to  this  ruling  the  plaintiff 
excepted. 

Judgment  having  been  given  for  the  defendants,  the  plaintiff 
appeals,  and  thus  it  becomes  necessary  to  inquire  into  the 
nature  of  the  powers  conferred  upon  the  Board  of  Health,  and 
to  determine  whether  they  were  authorized  to  direct  the  mak- 
ing of  the  contract  in  question.  The  points  involved  are 
purely  legal,  it  not  having  been  intimated  that  the  city  was 
unfaithfully  served  during  the  period  claimed,  or  at  a  rate  of 
compensation  at  all  objectionable. 

In  April,  1850,  there  was  what  might  be  termed  a  codifica- 
tion of  all  the  laws  relating  to  health  in  the  city  of  New  York, 
[See  Laws  1850,  ch.  275,  p.  597],  and  the  act  then. passed  em- 
bodies all  the  powers  under  which  the  Board  claimed  the  right 
to  make  the  contract  with  Woodruff.  Its  first  title  declares 
that  all  legislative  powers  theretofore  vested  by  any  law  of  the 
State  in  the  Board  of  Health  of  the  city,  other  than  as  therein 
altered  or  modified,  shall  be  vested  in  the  Mayor  and  Common 
Council  of  the  city,  who,  when  acting  in  relation  to  the  public' 
health,  or  in  the  execution  of  their  powers,  shall  be  known  as 
the  Board  of  Health  of  the  city  of  New  York,  and  of  which 
ten  members  shall  be  necessary  to  form  a  quorum.  Also,  that 


250  COURT  OF  COMMON  PLEAS. 

McLaren  v.  Mayor  &c.  of  New  York. 

the  president  of  the  Board  of  Aldermen,  and  of  the  assistants 
(now  Councilmen),  the  health  officers,  resident  physicians,  the 
health  commissioners  and  city  inspector  shall  be  commissioners 
of  health,  who,  in  connection  with  the  mayor,  are  required  to 
meet  daily  at  the  office  of  the  Board  during  such  part  of  the 
year  as  the  Board  shall  designate  ;  thus  providing  the  means 
for  immediate  action  in  all  matters  affecting  the  public  health; 
the  mayor,  as  president  of  the  Board,  being  authorized  to  con- 
vene it  at  any  time  he  shall  deem  it  necessary  so  to  do;  and  the 
object  of  this  daily  meeting  of  the  commissioners  being 
obviously  for  the  purpose  of  bringing  to  him  information  res- 
pecting the  health  of  the  city,  by  calling  daily  together  all  the 
officials  especially  entrusted  with  its  preservation. 

Passing  over  the  many  sections  of  the  act  not  necessary  to  be 
here  adverted  to,  we  find  in  its  third  title  very  full  and  ample 
powers  and  discretion  vested  in  the  city  inspector,  health  ward- 
ens, the  mayor,  aldermen,  and  commonalty,  the  mayor  and  com- 
missioners, and  the  board  of  health,  all  tending  to  the  public 
good,  and  enabling  the  particular  board  or  officer  designated  to 
act  speedily  and  promptly  in  all  cases  when  action  of  that  kind 
may  seem  beneficial  towards  preserving  the  health  of  the  people. 
"We  are  referred  to  section  6  of  this  title,  as  conferring  the 
power  upon  the  Board  to  make  the  contract  in  question.  I 
therefore  give  it  in  full : 

"  The  Board  of  Health,  or  the  Mayor  and  the  Commissioners 
of  Health,  when  they  shall  judge  it  necessary,  may  cause  any 
cargo,  or  part  of  cargo,  or  any  matter  or  any  thing  within  the 
city  that  may  be  putrid  or  otherwise  dangerous  to  the  public 
health,  to  be  destroyed  or  removed.  Such  removal,  when 
ordered,  shall  be  to  the  quarantine  ground,  or  such  other  place 
as  the  Board  of  Health  shall  direct.  Such  removal  or  destruc- 
tion shall  be  made  at  the  expense  of  the  owner  or  owners  of 
the  property  so  removed  or  destroyed  ;  and  the  same  may  be 
recovered  from  such  owner  or  owners  in  an  action  at  law  by 
the  mayor,  aldermen,  and  commonalty  of  said  city." 

This  section,  in  connection  with  sec.  27  of  the  charter  of 
1857,  [See  Laws,  ch.  446,  p.  883],  which  provides  for  "  an 
executive  department  of  the  city  government  known  as  the 


NEW  YOKK— NOVEMBER,  1862.  251 

McLaren  v.  Mayor  &c.  of  New  York. 

city  inspector's  department,  the  chief  officer  of  which  shall  be 
the  city  inspector,  and  shall  have  cognizance  of  all  matters 
affecting  the  public  health,  pursuant  to  the  ordinances  of  the 
common  council,  and  the  careful  requirements  of  the  Commis- 
sioners of  Health  and  the  Board  of  Health  ;" — it  is  contended 
vested  in  the  Board  ample  authority  to  direct  the  employment 
of  Woodruff  in  the  manner  here  shown  ;  and  charged  upon  the 
defendants  the  responsibility  of  providing  for  the  payment  of 
all  the  expense  arising  from  such  employment. 

Having  now  seen  the  general  nature  of  the  powers  conferred 
by  statute  upon  the  Board,  before  commenting  upon  its  extent 
let  us  turn  to  the  state  of  affairs  shown  by  the  preamble  to  this 
resolution,  directing  the  contract  in  question.  From  that  it 
appears  that  in  midsummer  of  1859,  the  city  corporation,  with 
ordinances  in  force  prohibiting  throwing  the  contents  of  privies 
in  the  North  or  East  River  below  42d  street,  [see  ordinances 
revd.  1859,  p.  319,  320],  and  requiring  all  such  filth  to  be  cast 
into  vessels  at  the  end  of  certain  piers,  under  a  penalty  of  $50 
for  each  offence,  had  no  vessels  provided  by  which  the  daily 
accumulations  of  filth  in  this  large  city  might  be  removed  be- 
yond its  limils.  It  may  also  be  presumed  that  under  these 
circumstances  the  city  inspector  had  declined  to  permit  the 
contents  of  any  privy  or  sink  to  be  removed,  because  he  was 
unable  to  specify  in  the  permission  the  pier  to  which  the  same 
might  be  taken  and  deposited,  [see  Ordinances  1859,  p.  321, 
sec.  16],  and  thus  it  was  that  the  health  wardens  had  reported  to 
him  and  the  Board,  [see  Laws  1850,  p.  607,»sec.  1,  sub.  1  and 
2],  the  existence  of  over  one  thousand  full  sinks  and  privies 
without  any  provision  made  by  the  defendants  for  removing 
their  contents  from  the  usual  dumping  wharves  in  boats  in  the 
ordinary  manner  beyond  the  limits  of  the  city  or  harbor.  The 
addition  to  the  preamble  that  such  a  nuisance  was  intolerable, 
seems  to  me  obvious  to  more  senses  than  one ;  and  if  it  were 
competent  for  us  in  any  case  to  inquire  whether  a  nuisance  in 
fact  existed  after  the  Board  of  Health  had  declared  that  it  did 
exist,  there  certainly  is  enough  here  shown  to  justify  us  in  con- 
curring in  the  conclusion  at  the  time  arrived  at.  But  it  has 
long  been  settled  that  courts  have  no  such  power  in  collateral 
proceedings  like  this  to  inquire  whether  the  facts  upon  which 


252  COURT  OF  COMMON  PLEAS. 

McLaren  v.  Mayor  &c.  of  New  York. 

a  board  of  health  determines  a  thing  to  be  a  nuisance  justify 
its  conclusion.  Van  Warmer  v.  The  Mayor,  &c.,  of  Albany, 
15  Wend.  262. 

'  We  therefore  must  assume  in  the  case  before  us  that  a  seri- 
ous nuisance,  prejudicial  to  the  health  of  the  city,  actually  ex- 
isted on  the  llth  day  of  June,  1858,  and  it  remains  for  us  to 
again  refer  to  the  statutes  already  cited  to  ascertain  whether 
their  provisions  are  sufficiently  broad  and  comprehensive  to 
include  within  them  the  power  here  shown  to  have  been 
exercised. 

The  language  of  section  6  of  the  act  of  1850  \supra~\  in  its 
applicability  to  the  case  in  hand  may  be  stated  thus  :  "The 
Board,  when  they  shall  judge  it  necessary,  may  cause  any 
matter  or  thing  within  the  city  that  may  be  dangerous  to  the 
public  health  to  be  removed  to  such  place  as  it  shall  direct. 
The  expense  of  such  removal  when  so  ordered  may  be  recov- 
ered from  the  owner  of  the  thing  in  an  action  at  law  by  the 
mayor,  aldermen  and  commonalty  of  the  city." 

There  can  be  no. question  that  here  was  a  thing  which  they 
very  properly  judged  necessary  to  have  at  all  times  removed 
from  beyond  the  limits  of  the  city  or  the  harbor,  as  its  presence 
was  dangerous  to  the  public  health.  It  was  a  plain  case,  there- 
fore, for  the  exercise  of  the  power  which  the  statutes  confer 
upon  the  Board,  and  their  contract  was  valid  and  binding  upon 
the  defendants,  unless  it  be  open  to  the  objection  that  it  was  a 
continuing  contract,  covering  a  greater  period  of  time  than  the 
necessities  of  the  ease  called  far,  and  therefore  void. 

But  an  obvious  answer  to  this  objection  is,  that  it  appears, 
by  referring  to  the  provisions  of  the  agreement,  that  it  was 
carefully  guarded  against  a  continuance  one  moment  longer 
than  the  public  necessity  which  called  it  into  existence  required, 
the  engagement  being  only  "  to  remove  temporarily,  or  until 
further  ordered  by  this  Board  or  the  Common  Council."  So 
that  it  was  competent  for  the  defendants  or  the  Board  of 
Health  to  terminate  it  at  any  moment.  It  was,  therefore, 
clearly  not  a  continuing  contract  in  any  objectionable  sense. 
It  did  not  in  the  slightest  degree  invade  the  powers  of  the 
Common  Council  of  the  city,  or  interfere  in  any  way  with  their 
right  to  direct  a  contract  to  be  entered  into  for  the  performance 


NEW  YOEK— NOVEMBER,  1862.  253 

'  McLaren  v.  Mayor  &c.  of  New  York. 

of  the  same  work  in  the  manner  prescribed  by  the  charter. 
Or  even  without  any  such  direction,  they  had  but  to  order 
Woodruff  to  cease  work  under  the  contract,  and  his  employ- 
ment was  at  an  end. 

May  it  then  be  justly  said  that  any  danger  can  happen  from 
the  exercise  of  a  power  of  this  kind,  and  in  this  careful  manner, 
by  the  Board  of  Health  ?  I  am  aware  it  was  argued  by  the 
learned  assistant  corporation  counsel  that  if  such  a  power  exists, 
it  may  be  extended  to  cleaning  the  streets  of  the  city,  filling 
sunken  lots,  removal  of  garbage,  etc.  as  to  all  of  which  the  Board 
of  Health  might  contract  so  as  to  invade  the  general  powers 
conferred  by  the  charter  upon  the  mayor,  aldermen  and  council- 
men,  but  even  admitting  that  it  should  be  so  extended,  I  have 
failed  to  perceive  that  any  evil  consequences  would  flow  from 
thus  holding,  or  that  considerations  of  public  policy  forbid  it. 
If  it  should  occur  that  the  Common  Council,  or  any  board  of 
department,  should  fail  to  provide  by  contract  against  such  a 
public  necessity  as  this  case  shows,  I  would  be  very  sorry  to 
believe  that  the  Board  of  Health  could  not  provide  temporarily 
for  the  emergency  as  was  here  done,  reserving  to  the  Common 
Council  the  right  to  terminate  the  arrangement  made  at  any 
moment  it  should  see  fit. 

Such  an  act  would  not  be  an  interference  with  the  powers 
conferred  upon  the  Common  Council,  but,  on  the  contrary, 
would  be  and  should  be  regarded  as  an  aid  te  those  persons, 
to  be  called  out  when  an  emergency  should  arise  demanding 
immediate  action  to  protect  the  public  from  an  impending 
danger. 

A  remaining  objection  is  that  the  contract  was  made  in  vio- 
lation of  sec.  38  of  the  charter  of  1857,  which  requires  all  such 
contracts  involving  an  expenditure  of  over  $250  to  be  founded 
upon  sealed  bids  and  proposals.  But  on  reading  that  section  it 
will  be  seen  that  its  provisions  apply  only  to  contracts  to  be  let 
by  authority  of  the  Common  Council,  and  besides  it  seems  quite 
clear  for  obvious  reasons  that  this  prohibition  was  never  in- 
tended to  apply  to  the  Board  of  Health,  a  body  the  very  object 
of  whose  organization  was  to  provide  speedy  means  of  remedy 
ing  those  threatened  evils  to  the  public  health  which  the  fore- 
thought and  wisdom  of  the  Common  Council  might  be  insuffi- 


COURT  OF  COMMON  PLEAS. 


McLaren  v.  The  Mayor  &c.  of  New  York. 


cient  to  guard  against  by  the  usual  course  of  proceeding  by 
contract  or  otherwise. 

Upon  the  whole  case,  I  think  it  is  right  that  we  should  hold 
the  present  contract  to  be  within  the  power  of  the  Board  ot 
Health  to  enter  into  ;  and  that  it  was  not  in  any  sense  a  con- 
tinuing contract,  or  to  be  regarded  as  an  invasion  of  the  powers 
conferred  upon  the  Common  Council,  inasmuch  as  it  reserved 
to  that  body  the  power  to  cancel  it  at  any  moment. 

The  judgment  should  be  reversed  and  new  trial  ordered, 
costs  to  abide  event. 

BRA.DY,  J.  concurred. 

DALY,  F.  J.  [dissenting]. — I  still  remain  of  the  opinion  that 
the  Board  of  Health  had  no  power  to  authorize  the  City  In- 
spector to  employ  Woodruff  to  remove  the  contents  of  all  the 
privies  in  the  city  of  New  York.  I  have  no  doubt  of  their 
power  to  order  any  act  to  be  done,  essential  for  the  preserva- 
tion of  the  health  of  the  city,  and  where  a  public  emergency 
demands  it,  to  direct  a  contract  to  be  made  at  once,  without 
waiting  for  the  authority  of  the  Common  Council,  or  for  the 
making  of  a  contract  by  the  heads  of  departments,  in  the  mode 
prescribed  by  statute.  The  general  power  conferred  upon 
them  is  in  these  words  :  "  When  they  shall  judge  it  necessary, 
they  may  cause*  any  matter  or  thing  within  the  city,  that  may 
be  putrid  or  otherwise  dangerous  to  the  public  health,  to  be 
destroyed  or  removed."  [Laws  of  1850,  p.  609.]  It  rests  with 
them  alone  to  judge  of  the  necessity,  but  it  must  appear  from 
their  action,  or  from  what  they  directed  to  be  done,  that  they 
adjudged  that  the  matter  or  thing  directed  to  be  removed  was 
putrid  or  otherwise  dangerous  to  the  public  health.  This  does 
not  follow  from  the  preamble  and  resolution  which  they 
adopted.  The  preamble  declares  that,  whereas,  the  City  In- 
spector has  reported  at  his  office  over  one  thousand  sinks  and 
privies  full,  and  no  provision  being  made  by  the  Common 
Council  for  the  carrying  away  of  their  contents,  and  the  nnis- 
ance  has  become  intolerable,  therefore,  resolved.  Now,  the 
nuifiance  set  forth  in  this  preamble  is  the  fact  that  over  one 
thousand  sinks  and  privies  in  the  city  were  full  ^  and  if  their 
resolution  had  directed  that  the  contents  of  these  privies  should 


NEW  YORK— NOVEMBER,  1862.  255 

McLaren  v.  The  Mayor  &c.  of  New  York. 

be  removed,  it  would  be  interred  in  consonance  with  the  pre- 
amble, that  they  had  adjudged  that  their  continuance  in  that 
state  would  be  prejudicial  to  the  public  health,  and  that  they 
had  ordered  their  contents  to  be  removed  as  a  matter  of  public 
necessity.  But  their  resolution  went  far  beyond  this.  It  em- 
powered the  City  Inspector  to  employ  Woodruff  to  remove, 
temporarily,  or  until  further  ordered  by  them  or  by  the  Com- 
mon Council,  all  the  contents  of  sinks  and  privies  in  the  city. 
It  contemplated  that  this  was  to  be  done  unless  they  or  the 
Common  Council  ordered  otherwise.  It  did  not  direct  the 
emptying  of  the  thousand  or  more  that  were  fall,  but  the  re- 
moval of  the  contents  of  all,  whether  full  or  not — a  task  that 
required  and  actually  took  more  than  a  year  to  accomplish. 
Their  preamble  certainly  did  not  indicate  that  they  considered 
this  essential  for  the  preservation  of  the  public  health,  nor 
could  it  be  deemed  so,  unless  suffering  anything  to  remain  in 
a  privy  could  be  regarded  as  having  that  effect.  A  work  so 
extensive  as  this,  involving  the  expenditure  of  a  very  large  sum 
of  money,  and  which  required  more  than  a  year  to  perform, 
was  one  to  be  entered  into  under  the  authority  of  the  Common 
Council,  and  to  be  put  up  to  public  competition  hi  the  mode 
provided  by  statute.  I  am  disposed  to  give  a  broad  and  liberal 
construction  to  the  power  of  the  Board  of  Health,  but  I  think 
it  would  be  exceeding  all  just  bounds  to  recognize  their  author- 
ity to  make  such  a  contract  as  this.  It  is  true  that  the  resolu- 
tion declares  that  the  City  Inspector  is  to  employ  Woodruff  to 
remove,  temporarily,  all  the  contents  of  the  sinks  and  privies 
in  the  city,  or  until  further  ordered  by  the  Board  of  Health  or 
the  Common  Council,  but  it  is  precisely  in  this  way  that  the 
provisions  of  the  statute  are  defeated  which  require  all  con- 
tracts made  under  the  authority  of  the  Common  Council  for 
work  to  be  done  to  be  put  up  to  public  competition,  if  it  in- 
volves an  expenditure  of  more  than  $250,  and  I  cannot  regard 
as  a  legitimate  exercise  of  the  power  of  the  Board  of  Health 
the  empowering  of  work  to  be  done  not  embraced  in  the 
nuisance  set  forth  in  their  preamble,  and  which  it  is  very  mani«- 
fest  was  not  demanded  upon  any  ground  of  pressing  public 
necessity. 

Judgment  reversed,  and  new  trial  ordered. 


256  COURT  OF   COMMON  PLEAS. 


Case  v.  Bradburn. 


ALBERT  S.  CASK  v.  JOHN  BKADBUBN. 


One  who  indorses  a  forged  check  warrants  the  genuineness  of  the  check  and 
that  of  every  prior  indorser,  but  to  the  extent  only  of  binding  himself  as 
indorser,  and  if  the  proper  steps  have  not  been  taken  to  charge  him  as 
indorser,  he  is  not  liable  to  a  subsequent  holder  who  has  given  full  value 
for  the  check. 

The  defendant  received  a  forged  check  in  the  course  of  business  in  payment 
of  a  debt,  which  he  placed  in  his  bank  for  collection,  and  which  he  indorsed 
in  compliance  with  the  rules  of  the  bank.  Upon  the  presentation  of  the 
check  to  the  bank  upon  which  it  was  drawn  payment  was  refused,  and  upon 
its  being  delivered  to  the  defendant's  servant,  he  returned  it  to  the  person 
from,  whom  the  defendant  had  received  it,  with  the  defendant's  indorsement 
upon  it,  and  by  the  person  it  was  passed  to  the  plaintiff  for  its  full  value, — 
Held,  as  the  defendant  was  ignorant  of  the  alleged  forgery,  and  as  the  money 
obtained  upon  it  upon  the  faith  of  his  indorsement  was  not  received  by  him, 
•end  as  no  step  had  been  taken  to  charge  him  as  indorser,  that  he  was  not 
liable. 

APPEAL  by  the  plain  tiff  from  a  judgment  entered  at  the 
Trial  Term. 

The  action  was  brought  against  the  defendant  as  the  second 
indorser  of  a  check. 

It  appeared  on  the  trial  that  one  John  A.  Stewart  being  in- 
debted to  the  defendant,  for  the  purpose  of  paying  a  debt 
delivered  to  the  defendant  a  check  upon  the  Bank  of  Commerce 
in  New  York,  purporting  to  be  signed  by  "  Plant  Brothers," 
to  the  order  of  one  H.-  Hoag.  The  check  was  indorsed  "  Har- 
vey Hoag,  per  John  Allen  Stewart,  att'y."  The  defendant  re- 
ceived the  check  from  Stewart,  and  having  indorsed  it,  offered 
it  for  deposit  for  collection  at  his  own  bank.  The  bank  refused 
to  receive  it  for  collection,  whereupon  the  defendant  delivered 
the  check  to  his  servant  to  be  by  him  presented  to  the  Bank 
of  Commerce  for  payment.  The  Bank  of  Commerce  refused 


NEW  YORK— NOVEMBER,  1862.  257 

Case  v.  Bradburn. 

payment,  and  the  servant  then,  without  authority  or  command 
of  defendant,  returned  the  check  to  Stewart  from  whom  defend- 
ant had  received  it,  the  name  of  the  defendant  still  remaining 
indorsed  thereon.  The  check  coming  into  the  hands  of  the 
plaintiff,  suit  was  brought  thereon.  It  did  not  appear  that  any 
notice  of  non-payment  of  the  check  was  ever  given  to  the  de- 
fendant by  the  plaintiff. 

The  action  was  tried  before  Judge  Hilton  without  a  jury, 
arid  judgment  was  ordered  for  the  defendant,  with  the  following 
opinion  : 

HILTON,  J. — Upon  the  facts  admitted  in  the  case  argued  on 
by  the  parties,  it  does  not  appear  that  there  was  any  privity  of 
contract  between  them.  Stewart  was  not  the  agent  of  the  de- 
fendant for  any  purpose,  and  the  payment  of  the  money  to  him 
created  a  liability  on  his  part  to  the  extent  claimed  in  this  suit, 
but  in  no  way  bound  or  affected  the  defendant.  Had  it  been 
shown  that  the  money  paid  Stewart  afterwards  came  to  the  de- 
fendant's hands,  he  would  undoubtedly  be  held  to  have  received 
it  cum  onere,  but  as  it  does  not  appear  that  he  was  either  directly 
or  indirectly  concerned  in  inducing  the  plaintiffs  to  part  with 
their  money  to  Stewart,  or  in  any  way  participated  in  the  fruits 
resulting  from  their  misplaced  confidence,  he  cannot  be  held 
chargeable  with  any  liability  growing  out  of  a  transaction  with 
which  he  was  in  no  way  connected.  Whether  the  defendant 
could,  under  the  circumstances  disclosed,  have  been  held  upon 
his  contract  of  indorsement  it  is  unnecessary  to  consider,  as  it 
does  not  appear  that  any  steps  have  been  taken  to  charge  him 
with  a  liability  in  that  character. 

Judgment  for  defendant,  with  costs. 

Appeal  was  taken  from  the  judgment  entered  in  favor  of 
defendant  to  the  General  Term. 

Alexander  Spaulding  for  appellant. 
John  T.  Doyle  for  respondent. 
i 

BY  THE  COUBT. — DALY,«F.  J. — By  putting  his  name  on  the 
check,  the  defendant  incurred  no.  other  liability  than  that  of 
17 


258  COUKT  OF  COMMON  PLEAS. 

Case  v.  Bradburn. 

indorser,  and  his  liability  was  at  an  end  when  the  holder 
failed  to  charge  him  by  demand  and  notice.  If  the  proper 
steps  had  been  taken  to  charge  him,  it  would  have  been  no 
defence  on  his  part  that  the  indorsement  of  the  name  of  the 
payee  was  a  forgery,  for,  by  his  contract  of  indorsement,  he 
engaged  or  guaranteed  that  the  check  would  be  paid,  or,  if 
not,  that  he  would  pay  it  upon  due  service  of  notice,  according 
to  the  usage  of  the  law  merchant.  He  was  not  so  notified,  and 
was  accordingly  discharged  from  his  contract  of  indorsement, 
and  from  everything  incident  to  it. 

He  is  sought  to  be  charged  in  the  action  upon  the  ground 
that,  by  indorsing  the  check,  he  warranted  to  every  subsequent 
holder  the  genuineness  of  it  and  of  the  prior  indorsement ;  and 
this  he  did;  to  the  extent  of  binding  himself  as  indorser,  whether 
the  check  was  genuine  or  not,  but  no  further,  and  the  holder, 
having  neglected  to  charge  him  as  indorser,  has  released  him 
from  that  contract,  and  all  that  was  incident  to  it. 

If  the  defendant  had  passed  the  check  to  the  plaintiffs  and 
received  from  them  the  value  of  it,  he  would  be  bound  to  pay 
it  back  to  them  when  it  was  ascertained  that  the  signature  of 
the  payee,  indorsed  upon  it  to  render  it  negotiable,  was  a  for- 
gery. But  that  is  not  the  case.  The  defendant  received  the 
check  from  Stewart,  with  the  name  of  the  payee  indorsed  on  it, 
in  payment  of  a  debt.  After  so  receiving  it  he  sent  it  by  a 
servant  to  the  Bank  where  he  kept  his  account,  for  deposit  and 
collection,  and  before  doing  so,  indorsed  his  name  upon  it,  be- 
cause the  rules  of  the  Bank  required  that  persons  depositing 
checks  should  write  their  names  across  the  back  as  owners. 
The  Bank  refused  to  take  it  for  collection,  and  the  servant  then 
went  with  it  to  the  Bank  upon  which  it  was  drawn,  where  pay- 
ment being  refused,  the  servant,  without  direction  or  autho- 
rity from  the  defendant,  returned  the  check  to  Stewart,  by 
whom  it  was  passed  to  the  plaintiffs. 

The  plaintiffs  having,  by  their  laches,  discharged  the  defend- 
ant from  his  liability  as  indorser,  can,  upon  this  state  of  facts, 
have  no  further  claim  upon  him.  Their  only  remedy  is  against 
Stewart,  to  recover  back  from  him  what  they  gave  him  for  the 
check. 

The  judgment  should  be  affirmed. 


NEW  YORK— JANUARY,  1863.  259 


Bogert  v.  Dean. 


GEORGE  H.  BOGERT  v.  GEORGE  H.  DEAN. 

The  plaintiff  was  in  possession  of  .certain  premises  under  a  parol  agreement 
with  the  owner  that  he  should  have  a  lease  for  five  years  after  May  1st 
following.  The  defendant  having  become  the  owner  of  the  premises,  the 
plaintiff  agreed  in  writing  to  surrender  possession  of  them  to  him  on  the 
1st  of  October  preceding  said  1st  day  of  May,  on  payment  of  $350 ; 

Held — 1.  That  the  parol  agreement  between  plaintiff  and  the  first  owner 
was  valid,  and  gave  the  plaintiff  a  right  of  possession  until  the  1st  day  of 
May  thereafter. 

2.  That  the  plaintiff's  agreement  with  the  defendant  was  founded  upon  a 
sufficient  consideration  and  was  valid :  and  the  plaintiff  having  performed 
on  his  part,  was  entitled  to  compel  a  performance  on  the  part  of  the  defend- 
ant: 

To  entitle  plaintiff  to  recover  the  amount  agreed  to  be  paid  on  his  surrender 
of  possession  he  was  bound  to  show  that  he  was  ready  and  willing  to  surren- 
der on  the  day  agreed  on,  unless  a  strict  compliance  with  the  condition,  on 
that  day,  was  waived  by  the  defendant ;  and  if  such  were  the  fact,  it  rested 
with  the  plaintiff  to  show  it. 

What  facts  will  show  a  waiver  of  strict  performance — query  ? 

On  the  1st  of  October,  the  defendant's  agent  came  to  the  house  to  take  the  height 
of  the  buildings.  He  had  not  been  instructed  by  the  defendant  to  get  the  key, 
and  the  plaintiff,  in  consequence  of  a  violent  storm  on  that  day,  and  because  he 
could  not  get  into  the  house  he  was  going  to,  did  not  resume  his  effort  until  the 
next  day, — Held,  that  though  the  evidence  of  a  waiver  on  the  part  of  the  de- 
fendant was  slight,  and  perhaps  doubtful,  yet  the  Court  below  having 
deemed  it  sufficient,  the  judgment  should  not  be  disturbed. 

APPEAL  by 'the  defendant  from  a  judgment  of  the  Marine 
Court  at  general  term. 

This  was  an  action  against  the  defendant  to  recover  the  sum 
of  three  hundred  and  fifty  dollars,  with  interest  from  October 
1, 1860,  alleged  to  have  been  agreed  to  be  paid  by  the  defend- 
ant to  the  plaintiff,  upon  the  surrender  by  the  plaintiff  to  the 
defendant  of  the  house  and  premises  known  as  No.  16  Sixth 
Avenue. 

One  Delaplaine  was  the  owner  of  the  premises  at  the  com- 
mencement of  the  plaintiff's  possession.  The  plaintiff  was  in 
possession  of  the  premises,  under  a  parol  agreement  with  Dela- 
plaine that  he  should  have  a  lease  for  five  years  from  May  1, 
1860,  at  four  hundred  dollars  a  year,  together  with  taxes  and 
croton  water  rents,  and  he  was  to  make  improvements. 


260  COUET  OF  COMMON  PLEAS. 

Bogert  v.  Dean. 

The  defendant  agreed  to  purchase  the  house  of  Delaplaine. 
Thereupon  he  negotiated  with  the  plaintiff,  who  agreed  that  he 
would  accept  three  hundred  and. fifty  dollars,  and  surrender 
the  prerfiises  on  the  1st  of  October  then  ensuing;  the  defend- 
ant said  he  would  give  it,  and  the  folio  wing  memorandum  was 
signed  by  the  plaintiff. 

"  I  hereby  agree  to  surrender  possession  on  the  first  day  of 
October  next,  on  payment  to  me  of  three  hundred  and  fifty 
dollars.  GEORGE  H.  BOGERT." 

The  sale  to  the  defendant  by  Delaplaine  was  completed. 
The  plaintiff  claimed  to  have  performed  his  contract  to  surren- 
der possession  on  the  1st  day  of  October,  and  brought  his  action 
to  compel  defendant  to  pay  the  sum  agreed  to  be  paid  for 
such  surrender. 

Judgment  was  rendered  for  plaintiff,  and  defendant  appealed. 

Merwin  R.  Brewer  and  Moses  Ely  for  appellant. 
Frederick  W.  King  for  respondent. 

BY  THE  COURT. — DALY,  F.  J., — The  only  absolute  interest 
which  Bogert  had  in  the  premises,  under  the  oral  agreement 
between  him  and  Delaplaine,  was  a  right  to  the  possession 
until  the  first  of  .May  following ;  the  parol  understanding  be- 
tween him  and  Delaplaine  operating  as  a  valid  agreement 
for  the  occupation  of  the  premises  from  the  time  of  the  com- 
mencement of  Bogert's  possession  until  the  first  of  May  there- 
after, (3  Ret).  Stat.  34,  §1,5  ed.,)  and  this  interest,  Bogert  could 
surrender  or  transfer  by  a  parol  agreement,  (3  Rev.  Stat.  220, 
§  6, 5  ed.,}  but  whatever  may  have  been  his  interest,  he  surren- 
dered and  assigned  it  in  writing,  in  that  respect  complying 
with  all  that  the  statute  required  (3  Rev.  Stat.  220,  §  6,  5  ed.) 

The  agreement  to  sell  between  Delaplaine  and  De"an  was 
subject  to  the  right  of  Bogert  as  lessee.  In  consonance  with 
that  agreement,  which  was  in  writing,  Bogert,  upon  Dean's 
promise  to  pay  him  three  hundred  and  fifty  dollars,  if  he  would 
surrender  the  premises  on  the  first  of  October  then  ensuing, 
signed  an  agreement  in  writing,  by  which  he  bound  himself  to 
do  so,  which  writing,  Delaplaine,  with  the  assent  of  Bogert  and 
Dean,  agreed  to  hold  for  both  parties.  He  held  it  until  the 
purchase  was  completed,  and  on  the  day  when  it  was  completed 
gave  it  up  to  Dean  at  his  request.  This  was  a  valid  agreer 


NEW  YORK— JANUARY,    1863.  261 

Bogert  v.  Dean. 

ment,  founded  upon  a  sufficient  consideration,  which  Dean, 
after  it  was  delivered  to  him,  could  enforce,  and  having  been 
executed  at  his  request  and  delivered  to  him,  Bogert,  in  the 
want  of  performance  on  his  part,  was  equally  entitled  to  the 
benefit  of  it. 

To  entitle  him  to  recover  the  three  hundred  and  fifty  dollars 
Bogert  was  bound  to  show  that  he  was  ready  and  willing  to 
surrender  up  the  premises  on  the  first  of  October,  unless  a  strict 
compliance  with  the  condition  on  that  day  had  been  waived  by 
the  defendant,  and  if  such  were  the  fact,  it  rested  with  Bogert 
to  show  it.  Benedict  v.  Lynch,  1  Jolma.  C.  R.  374  ;  Marshall  v. 
9  Ad.  and  Ellis,  N.  S.  791. 

Bogert  had  not  removed  from  the  premises  oil  the  first 
of  October.  He  moved  a  part  of  his  effects  on  the 
twenty-ninth  of  September,  and  the  family  appear  to 
have  moved  out  of  the"  house  before  the  first  of  October.  On 
the  first  of  October  there  was  a  violent  storm,  and  it  would 
seem,  in  consequence  of  that,  and  because  he" did  not  get  into 
the  house  he  was  going  to^  that  he  did  not  remove  the  bulk  of 
his  effects  until  the  second.  On  the  second,  according  to  his 
testimony,  the  family  up  stairs  moved  and  he  also,  though  he 
kept  a  desk  and  two  chairs  there  after,  waiting  for  Dean  to  take 
possession.  Dean's  agent  went  to  the  house  on  the  first,  but 
it  would  seem,  not  for  the  purpose  of  taking  actual  possession, 
as  he  was  sent  by  Dean  merely  to  take  the  height  of  the  ceil- 
ino-.  and  testified  that  he  had  not  been  instructed  by  Dean  to 

O*  * 

get  possession  ol  the  key.  No  further  step  was  taken  by  Dean, 
and  on  the  sixth,  Bogert  called  upon  him  and  he  told  Bogert 
that  he  did  not  want  the  house  until  May,  and  that  he  could 
keep  it,  and  upon  Bogert  asking  him  for  the  three  hundred 
and  fifty  dollars,  he  replied  evasively,  "  My  memory  is  very 
treacherous.  I  don't  recollect."  On  the  thirteenth,  Bogert 
went  and  tendered  the  keys,  but  as  Dean  did  not  take  them 
he  brought  them  away,  and  on  the  fifteenth  he  sent  them  to 
Dean  with  a  note  advising  him  of  the  surrender  of  the 
premises.  There  was  some  conflict  as  to  the  time  of  Bogert's 
removal.  Dean's  agent  having  testified  that  he  saw  Bogert  re- 
moving out  furniture  on  the  4th. 

On  the  testimony  the  justice  gave  judgment  for  the  plaintiff 


262  COUHT  OF  COMMON  PLEAS. 

Bogert  v.  Dean. 

for  the  three  hundred  and  fifty  dollars.  We  must  assume  it  to 
have  been  on  the  ground  that  Bogert's  continuance  on  the 
premises  after  the  17th  of  October  was  with  Dean's  assent  and 
acquiescence.  The  evidence,  I  think,  shows  that  Dean  had  no 
intention  or  wish  to  take  possession  on  the  1st  of  October. 
That  for  some  reason  not  disclosed,  he  was  not  ready  to  do  so 
until  the  1st  of  May,  and  that  consequently  he  wished  to  avoid 
the  payment  of  the  three  hundred  and  fifty  dollars,  and  if 
he  could,  to  hold  Bogert  as  his  tenant  until  the  expiration  of 
that  period.  He  was  examined  as  a  witness,  and  denied  what  was 
expressly  sworn  to  by  Dtlaplaine,  that  he  had  agreed  to  pay 
Bogert  the  three  hundred  and  fifty  dollars,  or  anything  for 
quitting  the  premises.  Delaplaine  swore  that  he  told  Dean 
that  though  the  agreement  to  give  Bogert  a  lease  for  five  years 
was  not  in  writing,  that  his  word  had  been  given  for  it,  that 
Bogert's  interest  must  therefore  be  protected,  and  that  they, 
Bogert  and  Dean,  must  make  their  own  arrangement  about 
the  lease,  and  Dean  did  not  deny  that  he  had  requested  and 
received  the  written  agreement  which  bound  Bogert.  Bogert 
in  fulfilment  of  his  engagement  had  hired  other  premises.  His 
removal  on  the  first,  and  that  of  the  family  up  stairs,  appears  to 
have  been  interrupted  by  the  violent  storm  on  that  day,  and  he 
removed  from  the  premises  substantially,  according  to  his 
statement,  on  the  day  following.  The  purpose  for  which  the 
defendant's  agent  called  was  an  indication  that  Dean  did  not 
want  actual  possession  on  that  day,  that  he  was  not  yet  ready 
to  use  or  take  possession  of  the  house,  upon  which  Bogert  may 
very  well  have  lingered  until  the  6th,  when  he  called  upon 
Dean,  and  the  interview  took  place  which  has  been  referred  to. 
The  evidence  to  show  a  waiver  on  the  part  of  Dean  is  slight, 
and  perhaps  doubtful,  but  the  justice  deemed  it  sufficient,  and 
I  think  we  ought  not  to  disturb  the  judgment. 


NEW  YOKK— JANUARY,  1863.  263 


Russell  v.  Mayor  &c.  of  New  York. 


WILLIAM  RUSSELL  v.  THE  MAYOR,    ALDERMEN,   AND  COMMON- 
ALTY OF  NEW  YORK. 

Section  6  of  the  Laws  of  1360,  ch.  379,  requiring  the  plaintiff  in  all  actions 
against  the  Corporation  of  New  York  city  to  allege  in  his  complaint  a  pre- 
sentment of  his  claim  to  the  Comptroller,  and  the  refusal  of  the  latter  to  pay 
or  adjust  the  same, — is  not  restricted,  in  its  application,  to  any  particular 
class  of  cases. 

A  complaint  omitting  such  an  allegation  cannot  be  upheld  on  the  ground 
that  the  claim,  e.  g.,  for  damages  sustained  by  falling  into  a  hole  in  the  side- 
walk, was  not  of  such  a  character  as  the  comptroller  would  have  been  author- 
ized to  adjust,  had  it  been  presented  to  him. 

In  an  action  against  the  city  corporation,  the  defendants  set  up  in  their  an- 
swer as  a  distinct  ground  of  defence,  the  fact  that  the  complaint  did  not 
contain  the  allegation  of  a  presentment  of  demand  to  the  comptroller,  as 
required  by  statute.  On  the  trial,  the  defendant  moved  to  dismiss  the  com- 
plaint on  the  ground  of  such  omission, — Held,  that  the  motion  should  have 
been  granted. 

The  fact  that  the  judge  denied  the  motion,  and  permitted  the  case  to  go  to  the 
Jury,  who  rendered  a  verdict  in  the  plaintiff's  favor,  cannot  help  him,  he  hay- 
ing acquired  no  additional  rights  by  the  erroneous  decision  of  the  Judge. 

It  seems  that  as  the  provision  of  the  statute,  requiring  the  plaintiff  to  allege 
presentment  of  claim,  &c.,  to  the  comptroller,  is  for  the  benefit  of  the  cor- 
poration, they  may  waive  an  omission  of  such  allegation,  and  a  failure  to  take 
advantage  of  such  an  omission  by  their  answer,  will  be  regarded  as  an 
express  waiver. 

APPEAL  by  the  defendants  from  a  judgment  entered  on  the 
verdict  of  a  jury  at  Trial  term. 

The  plaintiff  sued  the  defendants,  to  recover  the  sum  of  fif- 
teen hundred  dollars  damages,  for  injuries,  which  he  alleged 
he  sustained  from  falling  into  the  coal  or  vault  hole, 
opposite  premises  No.  129  Prince  Street,  in  the  city  of 
New  York.  The  complaint  did  not  contain  any  allegation  of 
presentment  of  demand  to  the  Comptroller,  as  required  by  the 
Act  of  April  14,  1§60.  On  the  trial  of  the  action,  at  the  close 
of  the  plaintiffs  testimony,  there  being  no  evidence  of  any 
presentment  of  the  claim  to  the  Comptroller  of  the  city  of  New 
York,  for  adjustment,  the  defendants'  counsel  moved  for  a  non- 


264  COURT  OF  COMMON  PLEAS. 

Russell  v.  Mayor  &c.  of  New  York. 

suit,  on  the  ground  that  it  did  not  appear  by  the  complaint, 
nor  by  the  evidence,  that  the  plaintiff  had  complied  with  the 
provision  of  the  Act  of  14th  April,  1860  ;  the  Court  denied  the 
motion,  holding,  for  the  purposes  of  the  trial,  that  it  was  not 
necessary  to  present  claims  of  this  character  to  the  Comptrol- 
ler. On  the  llth  day  of  June,  1862,  the  trial  was  concluded, 
and  resulted  in  a  verdict  for  the  plaintiff  for  thirty  dollars. 

The  defendants  appealed  to  the  General  Term. 

H.  H.  Anderson,  for  appellants. 

'A .  K.  Hadley  and  Edward  Browne,  for  respondent. 

I.  The  subject  matter  of  this  action  is  not  within  the  purview 
of  the  Statute  of  1860.    The  Statute  in   question  could  only 
have  reference  to  "claims"   in   the   settlement   whereof  the 
Comptroller  has  jurisdiction.      The  Comptroller  has  no  power 
or  jurisdiction  except  such  as  is  conferred  by  §  14  of  article  2, 
chap.  3,  of  the  Revised  Ordinances  of  New  York,  entitled  "  of 
the  Department  of  Finance1."     (See   Corporation  Ordinances, 
revised  in  1859,  p.  57.)  V 

II.  The  language  of  the  Act  of  1860  is  peculiar  ;  prescribing, 
not  what  claims  should  be  presented  to  the  Comptroller,   but 
the  time  which  should  elapse  after  such  presentation  before 
action  brought ;  evincing  no  intention  to  enlarge  the  sphere  of 
the  Comptroller's  action,  or  to  restrict  the  rights  of  parties  to 
prosecute  their  claims  in  all  matters  not   cognizable  by   the 
Comptroller. 

BY  THE  COURT. — HILTON,  J. — The  second  section  of  the  "  Act 
relating  to  actions,  legal  proceedings,  and  claims  against  the 
Mayor,  Aldermen,  and  Commonalty  of  the  City  of  New  York," 
passed  April  14,  1860,  declares  that  u  no  action  or  special  pro- 
ceeding shall  be  prosecuted  or  maintained  against  the  said  the 
Mayor,  Aldermen,  &c.  of  New  York,  unless  it  shall  appear  by 
and  as  an  allegation  in  the  complaint  or  necessary  moving  pa- 
pers, that  at  least  twenty  days  have  elapsed  since  the  claim  or 
claims  upon  which  said  action  or  special  proceeding  is  founded 
were  presented  to  the  Comptroller  of  said  city  for  adjustment, 
and  not  then  unless  it  shall  further  appear  by  and  as  an  addi- 
tional allegation  in  the  said  complaint,  that  upon  a  second 


NEW   YOEK— JANUARY,  1863.  265 

Russell  v.  Mayor  &c.  of  New  York. 

demand  in  writing  being  made  upon  the  said  Comptroller  after 
the  expiration  of  said  twenty  days,  the  said  Comptroller 
neglected  and  refused  to  make  an  adjustment  or  payment 
thereof.  If  the  plaintiff  recover  judgment  in  his  action  or  in 
his  special  proceeding,  he  shall  recover  full  taxable  costs  with- 
out regard  to  the  amount  of  judgment." — Thus  in  effect  pro- 
viding a  new  or  additional  rule  of  pleading  in  all  actions 
against  the  defendants,  and  requiring  the  plaintiff  in  his  com- 
plaint, in  addition  to  stating  his  cause  of  action,  to  allege,  and 
if  controverted,  to  prove  at  the  trial,  that  he  has  presented  his 
claim  to  the  Comptroller,  and  that  its  payment  or  adjustment 
has  been  neglected  or  refused. 

•  As  this  provision  is  obviously  for  the  benefit  of  the  defend- 
ants, and  to  save  them  from  unnecessary  expense  in  respect  to 
claims  which  would  be  paid  or  adjusted  if  brought  to  their 
notice  and  a  reasonable  time  given  for  their  examination,  it 
follows  that  they  may  waive  it  if  they  choose  to  do  so  ;  and  as 
the  omission  of  the  allegation  would  constitute  a  valid  defence, 
it  also  follows  that  if  they  fail  to  take  advantage  of  it  by  their 
answer  they  should  be  regarded  as  having  expressly  waived  it. 

By  the  Code,  (Sec.  149)  the  answer  must  contain  a  state- 
ment of  any  new  matter  relied  on  as  constituting  a  defence, 
and  an  omission  in  this  respect  is  equivalent  to  conceding  that 
no  such  defence  exists. 

Here,  there  was  no  such  waiver  or  concession.  The  defend- 
ants did  set  up  in  their  answer  as  a  distinct  ground  of  defence, 
and  as  an  objection  against  the  plaintiff's  maintaining  or  prose- 
cuting his  action,  the  fact  that  the  complaint  did  not  contain 
the  required  allegation.  The  plaintiff  went  to  trial  with  know- 
ledge that  this  omission  would  be  relied  on  as  a  defence,  and 
the  objection  was  then  taken  upon  the  motion  to  dismiss  the 
complaint.  He  cannot  therefore  complain  of  surprise,  and  the 
presiding  Judge  should  have  hell  him  to  the  consequences  of 
his  omission  by  granting  the  motion.  The  fact  that  the  Judge 
did  not  do  so,  but  permitted  the  case  to  go  to  the  jury,  who 
rendered  a  verdict  in  the  plaintiff's  favor,  cannot  help  him,  as 
he  acquired  no  additional  rights  by  the  erroneous  decision 
against  the  defendants,  who  had  in  no  way  waived  their  objec- 
tion, but  on  the  contrary,  had  presented  it  in  a  proper  manner 
and  at  the  fit  time. 


266  COURT  OF  COMMON  PLEAS. 

Russell  v.  Mayor  &c.  of  New  York. 

Bnt  it  is  contended  that  the  claim  of  the  plaintiff  was  not  of 
such  a  character  as  the  Comptroller  would  have  been  author- 
ized to  adjust  had  it  been  presented  to  him,  and  that  therefore 
as  its  presentation  would  have  been  an  idle  ceremony,  the  alle- 
gation in  that  respect  should  not  be  required  to  be  inserted  in 
the  complaint.  The  answer  to  this  view,  however,  is  twofold. 
1st.  The  statute  in  terms  declares  that  no  action  shall  be 
maintained  or  prosecuted  against  the  defendants  unless  such  an 
allegation  appears  in  the  complaint,  and  2d.  The  Charter  of 
1857,  Sec.  1,  Laws  1857,  p.  874,  Sec.  22,  specifically  provides 
that  the  Department  of  Finance,  a  department  of  the  defend- 
ants, of  which  the  Comptroller  is  the  chief  officer,  "  shall  settle 
and  adjust  all  claims  in  favor  of  or  against  the  Corporation, 
and  all  accounts  in  which  the  Corporation  is  concerned,  either 
as  debtor  or  creditor," — a  provision  broad  enough  to  include 
claims  of  every  nature  and  description. 

For  these  reasons  the  judgment  should  be  reversed,  and  the 
complaint  dismissed  with  costs  to  the  defendants. 

Judgment  reversed. 


JAMES  K.  PLACE,  and  EPHRAIM  PLACE  v.  WILLIAM  L.  MC!LVAIN 
and  ISAAC  H.  YOUNG,  impleaded  with  GEORGE  NICHOLS. 

Where  all  that  appears  is  that  a  creditor,  after  a  note  becomes  due,  takes  from 
the  maker  a  new  note,  a  bill  or  a  check,  for  the  amount  of  it,  payable  at  a 
future  day,  the  conclusion  must  be  that  the  parties  have  agreed  to  extend  the 
time  of  credit  upon  the  original  note,  until  the  suppletory  instrument  be- 
comes payable  ;  and  if  such  an  agreement  is  founded  upon  sufficient  consid- 
eration, it  is  binding,  and  the  indorsers  of  the  original  note  are  discharged 
from  liability  thereon. 

The  maker  of  a  note,  past  due,  inclosed,  in  a  letter  to  the  holders  of  it,  a  check 
for  the  amount,  dated  at  a  future  day,  and  requested  them  to  keep  the  check 
until  its  maturity,  when  he  would  call  for  the  note.  The  holders  made  no 
reply,  but  kept  the  check,  and  deposited  it  in  bank  at  maturity,  "  with  the 
expectation  that  it  would  be  paid,"— Held,  that  from  such  a  state  of  facts,  it 
must  be  concluded  that  the  holders  acceded  to  the  request  of  the  maker,  and 
an  agreement  to  give  time  will  be  implied  as  a  matter  of  law. 

• 


NEW  YOKE— JANUARY,   1863.  267 

Place  v.  Mcllvain. 

Eeld,  therefore,  in  an  action  against  the  indorsers  of  the  note,  that  a  charge  to 
the  Jury  that  it  was  for  them  to  determine  as  to  the  intent  which  controlled 
the  holders  in  accepting  the  maker's  check,  was  erroneous,  and  that  the  re- 
quest of  the  defendant's  counsel  to  charge  the  Jury  to  find  for  the  defendant 
upon  the  ground  that  the  taking  of  the  check,  although  without  any  ex- 
_    press  promise  to  wait,  was  a  suspension  of  the  plaintiff's  right  to  recover 
',     on  the  note,  and  was  a  discharge  of  the  indorsers,  was  improperly  refused, 
and  a  new  trial  should  be  granted. 

Where  a  question  stands  doubtful  upon  an  uncontroverted  state  of  facts,  or 
where  the  facts  will  admit  of  either  of  two  conclusions,  the  solution  of  the 
question  should  be  left  to  the  jury,  and  their  determination  is  controlling 
and  final. 

Appeal  by  the  defendants  Mcllvain  and  Young  from  a  judg- 
ment on  a  verdict  rendered  on  the  second  trial  of  the  cause. 

The  plaintiffs  sued  the  defendants  on  a  promissory  note  made 
by  one  Nichols  to  the  order  of  the  defendants,  Mcllvain  and 
YouBg,  and  indorsed  by  them  in  blank. 

It  appeared,  on  the  trial,  that  at  the  maturity  of  the  note, 
the  maker  sent  his  negotiable  check,  dated  nine  days  ahead,  to 
the  plaintiffs  in  a  letter,  of  which  the  following  is  a  copy  : 

"  Messrs.  Place : — I  herewith  enclose  you  my  check  on  the 
Hanover  Bank  for  four  hundred  and  ninety  dollars  for  my  note 
now  under  protest.  Please  keep  the  check,  and  when  paid  I 
will  call  for  the  note.  I  have  been  disappointed  to-day  in  get- 
ting money,  and  of  course  quite  short.  If  you  will  accept  this 
you  will  confer  on  me  a  very  great  favor ;  and  if  you  have  been 
put  to  any  expense  in  consequence  of  not  getting  this  money 
at  maturity,  I  will  reimburse  you.  Respectfully  yours, 

GEOJBGE  NICHOLS." 

It  appeared  that  Nichols,  at  the  time  the  check  was  drawn, 
kept  an  account  in  the  Hanover  Bank.  Without  answering 
the  maker's  application,  the  plaintiffs  kept  the  check  until  about 
the  time  it  matured,  and  then  deposited  it  in  bank.  One 
of  the  plaintiffs  testified  "  we  deposited  it  because  we  expected 
it  would  be  paid." 

The  defendants'  counsel  requested  the  Court  to  direct  the 
jury  to  find  a  verdict  for  the  defendants  npon  the  ground  that 
taking  the  check  of  Nichols,  although  without  any  express 
promise  to  wait,  was  a  suspension  of  the  Places'  right  to  recover 
against  him  on  the  note,  and  was  a  discharge  ol  the  indorsers ; 


263  COURT  OF  COMMON  PLEAS. 

Place  v.  Mcllvain. 

and  upon  the  ground  that  plaintiffs  could  not  recover  on  the 
note,  they  not  having  shown  presentment  of  the  check  and 
notice  of  non-payment  to  Nichols.  The  Court  refused  to  do  so, 
and  the  defendants'  counsel  excepted. 

The  cause  having  been  summed  up  by  the  respective  coun- 
sel, the  Court  charged  the  Jury  :  "  That  it  was  the  law  that  if 
a  creditor  accepts  the  note  of  his  debtor  for  an  existing  indebt- 
edness, payable  at  a  future  day,  he  thereby  extends  the  time 
for  payment  until  the  maturity  of  the  note,  and  meanwhile  can 
maintain  no  action  upon  it.  So,  if  time  be  given  to  the  prin- 
cipal for  the  payment  of  a  debt  for  which  another  is  liable 
as  surety,  if  the  surety  has  not  consented  to  the  extension,  he  is 
by  such  an  act  discharged' 'from  his  liability.  Carrying  out 
this  rule  it  has  been  held,  and  such  is  the  law,  that  if  the  note 
received  from  the  principal  be  payable  but  one  day  ahead,  and 
the  surety  is  not  shown  to  have  assented  to  the  extensio*n,  he 
is  thereby  discharged.  Thus,  in  the  present  case,  if  the  plain- 
tiffs accepted  the  check  with  the  intention  of  holding  it  as  their 
own  until  maturity,  that  would  be  such  an  act  as,  if  done  with- 
out the  consent  of  the  defendants,  would  operate  to  discharge 
them  from  their  liability  as  indorsers  of  the  note  sued  upon. 
But  merely  retaining  the  custody  of  a  check,  payable  at  a  future 
dav,  sent  to  the  holder  of  a  note  by  the  maker,  where  it  is 
shown  either  by  positive  testimony,  or  by  circumstan  ces,  that 
such  retention  was  not  intended  by  either  party  as  an  extension 
of  the  time  of  payment,  and  that  both  so  understood,  would  not 
so  operate.  Such  an  intention,  however,  must  have  been  either 
actual  or  expressed,  or  the  circumstances  attending  the  receipt 
of  the  check  must  have  been  such  as  would  fully  justify  the 
presumption  that  both  parties  so  understood  the  act,  before  the 
intent  should  be  regarded  as  having  existed.  You  are,  there- 
fore, to  determine  as  to  the  intent  which  controlled  the  plain, 
tiffs  in  accepting  the  check,  and  if  it  was  received  and  retained 
without  any  intention  to  give  time  to  the  maker,  and  that  until 
it  matured  they  did  not%y  any  'act  of  theirs  indicate  that  they 
meant  to  hold  it  as  their  own  property,  the  liability  of  the  de- 
fendants, as  indorsers,  was  not  affected  by  it,  and  the  plaintiffs 
must  recover.  On  the  other  hand,  should  you  conclude  from 
the  testimony,  and  the  circumstances  disclosed,  that  no  such 


NEW  TOEK— JANUARY,  1863.  269 


Place  v.  Mcllvain. 


intention  exi&ted  or  was  communicated  in  any  way  to  the 
maker,  and  that  they  held  the  check  until  maturity  as  their 
own  property,  not  subject  to  the  control  qf  Nichols,  then  the 
defendants  will  be  entitled  to  your  verdict,  as  this  was,  in  effect, 
giving  time  for  the  payment  of  the  note  without  their  consent. 
In  conclusion,  I  hav*e  but  to  add,  that  whether  the  plaintiffs  are 
to  be  considered  as  having  accepted  and  retained  the  check  as 
their  own,  may  also  depend  upon  whether  you  believe  from 
the  evidence  presented  that  the  check  was  sent  by  Nichols  in 
good  faith,  and  with  the  expectation  of  paying  it  at  maturity. 
If  it  was  sent  without  an$  such  expectation  or  design,  and  the 
plaintiffs  so  understood  it,  they  were  not  required  to  go  to  the 
trouble  of  finding  Nichols  for  the  purpose  of  returning  the 
check  or  declaring  to  him  that  they  would  not  accept  it  on 
account  of  the  note.  And  on  the  contrary,  if  it.  were  sent  and 
accepted  in  good  faith,  and  in  the  expectation  that  it  would 
be  paid  when  due,  the  retaining  of  it  by  the  plaintiffs  as  their 
own  property,  and  depositing  it  in  their  account  for  collection, 
is  evidence  of  their  intention  to  give  time  to  Nichols  during 
the  running  of  the  check,  and  the  defendants  thereby  were 
discharged  from  liability." 

The  Jury  rendered  a  verdict  for  the  plaintiffs,  upon  which 
judgment  was  entered,  and  the  defendants  appealed. 

Benj.  Vaughan  Abbott  for  appellants. 

Taking  the  new  negotiable  check  of  the  maker,  operated  to 
suspend  the  right  of  action  of  the  holder  upon  it  ,  and  so  dis- 
charged the  indorsers.  (Platt  v.  Stark,  2  Hilt.,  401 ;  Fellows 
v.  Prentiss,  3  Den.,  512,  518  ;  Putnam  v.  Lewis,  8  Johns., 
389 ;  Gdler  v.  Seixas,  4  Abbott's  Pr.,  103  ;  Bangs  v.  Mosher, 
23  Barb.',  478 ;  Hart  v.  Hudson,  6  Duer,  304 ;  Meyers  v.  Wetts, 
5  Hill,  463.)  The  plaintiffs  by  retaining  the  check,  in  silence, 
and  treating  it  as  their  own,  depositing  it  to  their  credit,  etc., 
are  clearly  chargeable  with  an  acceptance  of  the  check.  If 
there  were  any  ground  or  pretence  that  the  check  was  not  drawn 
and  sent  in  good  faith,  the  plaintiffs  might  perhaps  not  be 
bound  to  return  it,  or  communicate  any  refusal  to  accept  it. 
But  good  faith  is  clearly  shown. 


270  COURT    OF   COMMON   PLEAS. 

Place  v.  Mcllvain. 

A.  R.  Lawrence  and  A.  H.  Wallia  for  respondents. 

The  learned  judge  before  whom  the  cause  was  tried  properly- 
refused  to  direct  thqfrjury  to  find  a  verdict  for  the  appellants, 
as  requested  by  their  counsel.  (1)  If  the  appellants  are  right  in 
their  position  that,  "  taking  the  check  of  Nichols,  although  with- 
out any  express  promise  to  wait,  was  a  suspension  of  the  Places' 
right  to  recover  against  him  on  the  note,  and  was  a  discharge 
of  the  indorsers,"  there  was  no  question  for  the  jury  to  pass 
upon,  and  a  direction  that  they  should  find  a  verdict  in  any 
way  would  have  been  error.  The  appellants'  motion  should 
have  been  for  a  dismissal  of  the  complaint.  (2)  Again,  if 
they  are  right  in  that  position,  it  could  make  no  difference 
whether  the  check  had  been  presented  for  payment  or  notice 
of  non-payment  had  been  given  to  Nichols.  (3)  On  the  other 
hand,  if  the  taking  of  the  check  did  not  amount  to  an  agreement 
to  give  time,  the  question  whether  the  appellants  were  liable 
upon  the  note,  could  not  be  affected  by  the  disposition  which 
had  been  made  of  the  check. 

BY  THE  COURT. — DALY,  F.  J. — After  the  note  in  suit  had  ma- 
tured and  was  under  protest,  Nichols,  the  maker,  sent  a  check 
to  the  plaintiffs  dated  ten  days  ahead.  The  plaintiffs  kept  the 
check  until  about  the  time  of  its  maturity,  when  they  deposited 
it  in  their  bank,  expecting,  as  one  of  them  testified,  that  it 
would  be  paid.  As  to  these  facts  there  is  no  conflict,  the  con- 
flict being  upon  the  question,  whether  there  was  or  was  not 
an  express  promise  to  give  time.  Admitting,  in  consonance 
with  the  finding  of  the  jury,  that  there  was  no  express  agree- 
ment, still  the  question  remains,  whether  the  acceptance  of 
the  check  and  the  retaining  of  it  until  maturity,  the  depositing 
it  in  bank,  with  the  expectation  that  it  would  be  paid,  were 
not  acts  sufficient  on  the  part  of  the  plaintiffs  to  show  that 
there  was  an  implied  agreement  to  wait  for  payment  until 
the  maturity  of  the  check,  and  if  there  was,  then  the  indorsers 
of  the  note  were  discharged.  It  is  a  general  rule,  that  if  the 
creditor  takes  a  bill  or  note  for  the  amount  of  his  debt,  payable 
at  a  future  day,  it  suspends  the  remedy  on  the  original  debt 
until  the  note  or  bill  falls  due.  (Stedman  v.  Torch,  1  Esp.,  R.,  5  ; 
Putnam  v.  Lewis,  8  Johns.,  389 ;  Fellows  v.  Prentiss,  3  Den., 
518 ;  Oeller  v.  Seixas,  *  Abbott  104 ;  Hart  v.  Hudson,  6  Duer, 


KEW  YOKE— JANUAKY,  1863.  271 


Place  v.  Mcllvain. 


305 ;  Platt  v.  Stark,  2  Hilton,  399.)  And  the  acceptance  of  a 
check  dated  at  a  future  day,  and  which  consequently  is  not 
payable  until  that  day  arrives,  must  be  regarded  as  having  the 
same  effect. 

In  Bangs  v.  Masher,  23  Barb.  478,  a  collector  of  moneys, 
who  had  given  a  bond  with  sureties  for  the  faithful  performance 
of  his  duties,  accounted  with  the  obligees  for  certain  moneys 
he  had  collected,  and  they  took  his  check  for  the  amount.pay- 
able  at  a  future  day.     It  was  held  that  the  sureties  were  dis- 
charged, the  only  difference  between  the  check  in  that  case  and 
in  this  being  that  here  it  was  dated  as  of  a  future  day,  while 
there  it  was  expressly  made  payable  at  a  future  day,  a  distinc- 
tion which  is  not  material,  at  least  in  this  country,  in  respect 
to  its  character  as  a  negotiable  instrument.     If  it  had  been 
shown  that  the'  check  in  the  case  had  been  taken  merely  as 
collateral,  (Taylor  v.  Allen,  36  Barb.  298,)  or  if  there  had  been 
any  evidence  warranting  the  conclusion  that  it  was  not  the  in- 
tention of  the  parties  that  it  should  operate  to  extend  the  time 
of  payment  upon  the  original  debt,  it  would,  of  course,  not  have 
that  effect ;  but  where  all  that  appears  is  that  a  creditor,  after 
a  note  becomes  due,  takes  from  the  maker  a  new  note,  a  bill  or 
a  check,  for  the  amount  of  it,  payable  at  a  future  day,  the  con- 
clusion must  be  that  the  parties  have  agreed  to  extend  the 
time  of  credit  upon  the  original  note  until  the  suppletory  in- 
strument becomes  payable,  and  if  such  an  agreement  is  founded 
upon  a  sufficient  consideration,  it  is  binding.     A  very  slight 
consideration  will  suffice.     If  a  note  is  given  upon  an  account, 
of  for  goods  sold,  the  demand  is  thereby  liquidated,  which  is  a 
benefit  to  the  creditor,  or  if  after  a  note  is  due,  a  new  note,  a 
bill  or  «,  check  for  the  amount  of  the  debt  is  taken  from  the 
maker  payable  at  a  future  day,  the  creditor  acquires  a  negoti- 
able instrument,  which  may  be  used  more  beneficially  than  a 
note  which  is  past  due,  and  these  advantages  constitute  a  suffi- 
cient consideration  to  support  such  an  agreement.  Meyers  v. 
Wells,  5  Hill,  464. 

In  this  case,  the  check  was  sent  to  the  plaintiffs  enclosed  in  a 
letter,  and  the  question  whether  there  was  or  was  not  an  implied 
agreement  to  give  time  depends  upon  what  was  communicated 
in  the  letter,  and  what  the  plaintiffs  did  after  they  received  it. 
Nichols  states  in  the  letter  that  he  encloses  the  check  for  the 
amount  of  the  note  which  he  refers  to  as  then  under  protest. 


272  COURT  OF  COMMON  PLEAS. 

Place  v.  Mcllvain.  x 

He  requests  them  to  keep  the  check  and  says  that  when  it 
is  paid,  he  will  call  for  the  note.  After  this  statement  he 
continues  :  "  If  you  will  accept  this,  you  will  confer  upon  me  a 
very  great  favor,"  closing  with  the  suggestion,  that  if  they  had 
been  put  to  any  expense  in  consequence  of  their  not  getting 
the  money  at  maturity,  he  would  reimburse  them.  It  is 
very  plain  what  is  meant  by  the  "  great  favor  "  here  referred 
to.  It  is  manifestly  delay — the  postponement  of  payment  for 
the  ten  days  which  the  check  had  to  run.  It  is  capable  of  no 
other  interpretation.  Advised  then  by  this  note  of  what  Ni- 
chols requested,  what  did  the  plaintiffs  do  ?  By  their  own 
showing,  they  kept  the  check,  and  immediately  before  it  ma- 
tured, deposited  it  in  their  bank  for  collection,  expecting,  as  one 
of  them  testified,  that  it  would  be  paid.  There  is  no  pretence 
on  their  part,  and  both  of  them  were  examined  as  witnesses, 
that  any  intimation  was  given  to  Nichols  that  his  request 
would  not  be  complied  with,  nor  was  anything  further  done  by 
them,  except  to  ask  the  advice  of  their  lawyer,  the  nature  of 
which  was  not  disclosed,  as  it  was  objected  to,  and  ruled  out. 
The  conclusion  from  this  uncontroverted  state  of  facts,  in  my 
judgment,  must  be  that  they  acceded  to  the  request  made  to 
them  ;  "by  their  silence  after  the  receipt  of  the  letter,  and  by 
depositing  the  check  in  their  bank  for  collection,  they  meant 
to  and  did  give  Nichols  the  additional  time  asked  for  in  the  pay- 
ment of  the  debt.  From  such  a  state  of  facts,  an  implied 
agreement  to  give  time  is  to  be  inferred  as  matter  of  law.  The 
Judge  charged  the  jury  that  merely  retaining  the  custody  of  a 
check  payable  at  a  future  day,  sent  to  the  holder  of  ,a  note  by 
the  maker,  where  it  is  shown,  either  by  positive  testimony  or 
by  circumstances,  that  such  retention  was  not  intended  by 
either  party  as  an  extension  of  the  time  of  payment,  and  that 
both  so  understood  it,  would  not  so  operate  ;  but  that  such  an 
intention,  however,  must  have  been  either  actual  or  expressed, 
or  the  circumstances  attending  the  receipt  of  the  check  must 
have  been  such  as  would  fully  justify  the  presumption  that 
both  parties  so  understood  the  act,  before  the  intent  would  be 
regarded  as  having  existed,  and  he  left  it  to  the  jury  to  deter- 
mine as  to  the  intent  which  controlled  the  plaintiff  in  accepting 
the  check,  and  told  them  that  if  it  was  retained, without  any  in- 
tention to  give  time  to  the  maker,  and  that  until  it  matured 


YOKE:— JANUARY,  ises.  273 

Place  v.  Mcllvain. 

they  did  not  by  any  act  of  theirs  indicate  that  they  meant  to 
hold  it  as  their  own  property,  the  liability  of  the  defendants  as 
indorsers  was  not  affected  by  it,  and  the  plaintiffs  must  recover. 
Where  a  question  stands  doubtful  upon  an  uncontro verted  state 
of  facts,  or  where,  as  sometimes  happens,  the  facts  will  admit 
of  either  of  two  conclusions,  the  proper  course  is  to  leave  the 
solution  of  the  question  to  the  jury,  and  their  determination  is 
controlling  and  final.  But  such  was  not  the  case  here.  The 
plaintiffs  retained  the  check,  and  there  was  nothing  on  their 
part  to  show  an  intention  that  the  retaining  of  it  was  not  to 
have  the  effect  of  extending  the  time  of  payment  until  the 
check  became  due,  nor  any  circumstances  attending  the  reten- 
tion of  it  that  would  warrant  any  such  presumption,  and  if 
there  was  not,  then  there  was  nothing  for  the  jury  to  pass 
upon ;  but  the  question  upon  the  facts  proved  was  a  question 
of  law.  James  K.  Place  testified  that  he  never  made  any 
agreement  or  arrangement  with  Nichols  in  respect  to  the  check, 
and  that  when  it  was  received  he  called  upon  his  counsel 
to  take  their  advice  upon  the  subject ;  but  this  does  not  affect 
the  legal  conclusion  that  follows  from  the  nature  of  the  request 
contained  in  the  letter,  from  the  plaintiffs'  retaining  the  check 
and  depositing  it  in  their  bank  for  collection. 

On  a  trial,  and  especially  in  a  case  like  this,  where  there 
was  a  conflict  of  evidence  as  to  whether  there  was  or  was  not 
an  express  agreement,  it  is  always  safer  to  leave  the  question 
to  the  jury  under  proper  instructions  as  to  the  law,  which  the 
Judge  did ;  but  the  difficulty  in  this  case  is  that  the  defendants 
requested  the  Judge  to  charge  the  jury  to  find  a  verdict  for 
the  defendants  upon  the  ground  that  the  taking  of  the  check  of 
Nichols,  although  without  any  express  promise  to  wait,  was  a 
suspension  of  the  plaintiff's -right  to  recover  against  him  on  the- 
note,  and  was  a  discharge  of  the  endorsers,  which  upon  the  facts 
of  the  case,  I  think  they  were  entitled  to,  and  which  the  Judge 
refused.  A  new  trial  in  my  judgment  should  be  granted. 

18  * 


274  COUKT  OF  COMMON  PLEAS. 


Farish  v.  Corlies. 


JOHN  F.  FABISH  v.  JOHN  B.  COELIES  and  HENBT  A.  BUST. 

An  order  granting  or  denying  a  motion  to  open  an  inquest  cannot  be  reviewed 

on  appeal  by  the  General  Term. 
The  defence  of  usury  is  an  unconscionable  one,  and  the  courts  will  not  usually 

open  a  judgment  obtained  by  default  to  establish  it  or  allow  the  amendment 

of  a  pleading  for  that  purpose. 

Appeal  by  defendants  from  an  order  made  at  Special  Term, 
denying  a  motion  to  open  a  default. 

The  complaint  was  upon  a  promissory  note  made  by  John 
B.  Corlies,  and  endorsed  by  Henry  A.  Burt.  The  defendant 
Corlies  answered,  setting  up  that  the  indorsement  was  merely 
for  accommodation,  and  that  the  note  was  taken  by  the  plain- 
tiff from  him  on  a  usurious  consideration.  The  defendant  Burt 
also  set  up  that  this  indorsement  was  for  accommodation 
merely,  and  usury,  and  also  denied  any  knowledge  or  belief 
of  presentment  or  protest.  An  order  was  obtained  by  the 
plaintiff  to  place  the  cause  on  the  calendar  for  short  causes  for 
the  last  Friday  of  the  December  term,  and  the  order  duly 
served  on  the  defendants'  attorneys. 

Upon  the  second  Friday  of  December,  being  the  last  day 
of  the  term,  the  case  was  called,  and  the  defendants  having 
made  default,  an  inquest  was  taken  and  regularly  entered. 

The  defendants  applied  on  affidavit,  that  they  had  believed 
the  day  to  be  the  last  Friday  in  December,  and  had  a  good 
defence  on  the  merits  to  open  the  default.  The  plaintiff  op- 
posed the  motion  on  affidavits  showing  Friday,  the  13th,  to 
have  been  the  last  day  of  the  term,  and  also  that  before  taking 
the  note  plaintiff  had  made  inquiries  of  the  defendants,  and 
had  been  informed  the  note  was  good  business  paper. 

The  motion  was  denied,  and  the  defendant  appealed  to  the 
General  Term. 


NEW  YORK— JANUARY,  1863.  275 


Farish  v.  Corlies. 


Pennington,  Sullivan  &  Harrison,  for  the  appellants. 

I.  The  defendants  were  entitled  under  the   order  to   show 
cause  to  an  order  to  set  aside  the  default  and  judgment,  and 
to   be  let  in  to  •  prosecute  their  defence  on  terms.    (1)    The 
fault,  if  any,  was  not  that  of  the  defendants,  but  wholly  that 
of  their  attorneys.  (2)    The  power   of  the  Court  to  open  the 
default  was  ample.    (Code,  §  174.)    The  power  thus  conferred 
should  be  liberally  exercised,  and  as  a  general  rule,  relief  has 
been  afforded  as  a  matter  of  course  in  all  cases  reasonably  ca- 
pable of  being  reduced  to  any  of  the  four  categories  mentioned 
in  this  section.  (Allen  v.  Hackley,  4  How.  5  ;  Linde  v.  Verity, 
3  How.  350  ;  Galutat  v.  Downs,   1   Code  E.  120 ;  Foster  v. 
Udell,   2   Code  K.   30 ;  Dudley  v.  HuUard,  2  Code  R.  70 ; 
McGiffigan  v.  Jenkins,  1  Barb.   31 ;    Grant  v.  McCaughin,  4 
How.   216  ;    Washburn  v.  Herrick,   4  How.    15  ;  Kellogg  v. 
Klock,  2  Code  R.  28  ;  Lawler  v.  Saratoga  Ins.  Co.,  2  Code  R. 
114 ;  Raynor  v.  Clark,  7  Barb.  581 ;   Litchjield  v.  Harwell,  5 
How.  341  ;  1  Whittaker's  Prac.,  pp.  452  and  453.) 

II.  The  defence  of  usury  is  not  unconscionable.      It  is  both 
legal  and  consistent  with   public  policy,    and  if  not  to  be 
favored,  at  least  ouifht  to  stand  on  the  same  footing  as  all  other 
legal   defences.      The   Statutes  of  this  State  not  only  declare 
usurious  contracts  void,  but  make  the  taking  of  usury  a  misde- 
meanor punishable  by  fine  and  imprisonment.      The   case   of 
Toole  v.  Cook,  16  How.  142,  is  not  in  point   against  the    de- 
fendants.    In  that  case  the  defence  had  not  been  actually  in- 
terposed, as  in  this.      Here  were  no  laches  on  the  part  of  the 
defendants.     They  had  pursued  their  rights  and  defence  dili- 
gently, and  they  bring  themselves  within  the  cases  in  which 
defaults  have  been  held  excusable.     (2  Abbotts  N.  T.  Dig.,  p. 
391.)    The  question  here  is  not   whether  a   default  shall   be 
opened  to  let  the  defendants  in   to  plead  usury,  but  whether 
they  having  done  so  in  good  time,  shall  be  barred  from  having 
a  trial,  not  for  any  fault  or  laches  of  their  own,  but  by  reason 
of  an  honest  misapprehension  of  their  attorneys. 

III.  The  order  is  appealable.  It  clearly  affects  a  substantial 
right.  It  is  an  absolute  right  of  a  party  to  have  a  trial  of  an 
issue  which  he  lawfully  makes,  where  the  default  has  been 
suffered  from  mistake,  inadvertence,  surprise,  or  excusable 


276  COUKT  OF  COMMON  PLEAS. 

Parish  v.  Corlies. 

neglect.  It  is  true  that  the  Code  speaks  of  "  discretion,"  but 
it  is  a  sound  legal  discretion,  governed  by  established  rules, 
and  not  a  mere  caprice,  of  which  the  Code  speaks. 

T.  C.  B'uckley,  for  respondents. 

BY  THE  COTTKT. — DALY,  F.  J. — The  application  to  set  aside 
the  judgment  which  was  regularly  taken  by  default,  was  prop- 
erly denied.  The  defence  set  up  by  the  answer  was  usury, 
which,  though  a  defence,  as  a  matter  of  strict  right  is  regarded  as 
one  of  the  most  unconscionable,  because  the  party  setting  it  up 
not  only  defeats  the  claim  for  usurious  interest,  but  in  this 
State,  secures  for  his  own  benefit,  the  forfeiture  of  the  entire 
debt.  It  is  distinguishable  in  this  respect  from  the  defence  of 
the  statute  of  limitation,  where,  if  the  creditor  is  cut  off  by 
the  statutory  presumption  of  payment  from  lapse  of  time,  it  is 
in  consequence  of  his  own  negligence  or  the  defence  of  bank- 
ruptcy, in  which  a  man  unable  to  pay  his  debts  is,  by  the  oper- 
ation of  a  humane  and  politic  statute,  discharged  from  them, 
upon  giving  up  all  his  property  to  his  creditors.  Our  statutes, 
with  the  view  of  preventing  the  making  of  usurious  contracts, 
has  deprived  the  party  who  loans  money  at  usurious  interest 
of  all  remedy  for  recovering  back  the  principal.  It  does  not 
merely  render  void  the  contract  for  the  payment  of  usury,  but 
allows  a  party  to  retain  what  is  not  his,  because  it  has  been 
loaned  to  him  upon  the  expectation  or  promise  that  he  will  pay 
for  the  use  of  it  more  than  the  legal  rate  of  interest ;  and 
although  it  is  our  duty  to  carry  out  the  statute  efficiently 
where  such  a  defence  is  set  up,  with  all  the  consequences  that 
attach  to  it,  our  duty  in  that  respect  does  not  and  cannot  lessen 
the  impression  we  must  entertain,  in  conscience  and  in  morals, 
of  the  man  who  is  not  even  willing  to  give  back  what  he  has 
received,  when  he  comes  before'  the  Court,  and  asks  at  our 
hands  a  favor. 

As  the  judgment  was  regularly  obtained,  the  defendants  are 
not  entitled,  as  a  matter  of  right,  to  have  the  judgment  set 
aside  ;  but  it  rests  in  the  discretion  of  the  Court,  whether  their 
application  now  to  come  in  and  defend,  will  or  will  not  be 
granted  ;  and  where  such  an  application  has  been  made  to  the 
Judge  sitting  at  the  special  term,  and  he  has,  in  the  exercise 


NEW  YORK— JAOTAKY,  1863.  277 


Farish  v.  Corlies. 


of  his  discretion,  refused  it,  I  should  feel  disposed  to  hold  that 
his  decision  is  not  reversible  at  the  general  term.  It  was  held  by 
the  Court  of  Errors  in  Rowley  v.  VanBenthuysen,  16  Wend.  369, 
that  the  decision  of  the  Chancellor  in  refusing  to  vacate  an  or- 

.  der  taking  a  bill  pro  confesso,  and  to  allow  a  party  to  come  in 
and  defend,  was  not  a  proper  subject  of  appeal,  but  a  matter 
addressed  to  the  mere  discretion  of  the  Chancellor.  And  it  was 
held  by  the  Court  of  Appeals  in  Fort  y.  Bard,  1  N.  Y.  43, 
where  a  defendant  suffered  a  bill  to  be  taken  as  confessed 
against  him,  and  then  applied  upon  affidavit  excusing  his  de- 
fault, and  claiming  to  have  a  valid  defence  upon  the  merits  to 
set  aside  the  default,  and  for  leave  to  come  in  and  answer,  that 
it  was  not  an  appealable  matter,  but  a  question  of  practice, 
addressed  to  the  discretion  of  the  Chancellor ;  and  that  k 

-  could  not  become  a  matter  of  inquiry  what  consideration  gov- 
erned his  mind  in  denying  the  motion,  and  it  was  there- 
fore immaterial  whether  his  decision  was  right  or  wrong.  This 
case  was  determined  after  a  full  review  of  the  authorities,  and 
Chief  Justice  Bronson,  after  remarking  that  this  rule  stands 
as  strong  upon  principle  as  upon  authority,  lays  down  the  gen- 
eral principle  in  these  words :  "  Within  certain  prescribed 
periods,  a  party,  who  has  been  sued  either  at  law  or  in  equity, 
has  a  right  to  appear  and  make  his  defence.  It  is  a  strict  legal 
right  of  which  he  cannot  be  deprived.  But  when  that  time 
has  expired,  and  his  default  has  been  taken,  the  legal  right  is 
at  an  end  ;  and  if  he  wishes  to  be  heard  he  must  ask  it  as  a  mat- 
ter of  grace  and  favor,  *  *  *  and  whether  his  motion  is  granted 
or  refused,  it  is  final  so  far  as  relates  to  a  court  of  review." 
There  is  nothing  in  the  Code  affecting  the  application  of  the 
principle.  The  general  term  sits  as  a  court  of  review  to  which 
the  words  of  Chief  Justice  Bronson  are  as  applicable  as  they 
were  to  the  Court  of  Appeals.  The  Code  provides  for  the  re- 
view of  an  order  where  it  affects  a  substantial  right ;  but  a  par- 
ty cannot,  as  has  been  said  by  Mr.  Townshend  in  his  notes  up- 
on the  Code,  have  a  right  to  what  a  court  has  the  discretion  to 
grant  or  withhold.  Though  this  would  of  itself,  in  my  judg- 
ment, be  sufficient  reason  for  dismissing  the  appeal,  I  have 
been  disposed  to  go  further,  and  express  my  full  approval  of 
the  order  denying  the  defendant's  application. 


278  COUKT  OF  COMMON  PLEAS. 

Farish  v.  Corlies. 

The  Court  in  Lovett  v.  Cowman,  6  Hill,  226,  after  character- 
izing usury  as  an  unconscionable  defence,  remarked  upon  the 
authority  of  numerous  cases,  that  "  if  a  defendant  intends  to 
rely  upon  it,  he  must  take  care  to  set  it  up  at  the  proper  time 
and  in  the  proper  way.  He  is  not  entitled  to  any  special 
favor  for  the  purpose  of  enabling  him  to  bring  about  a  forfeit- 
ure of  the  debt,"  though  a  distinction  was  taken  in  that  case, 
which  was  a  decision  at  special  term,  founded  upon  another 
special  term  decision  of  the  same  Judge,  (Allen  v.  Mopes,  20 
"VVend.  633,)  between  relieving  a  defendant  who  had  set  up  the 
defence  of  usury  from  a  judgment  accidentally  taken  against 
him  by  default,  and  permitting  a  defendant  to  amend  a  plead- 
ing by  setting  up  such  a  defence.  This  decision,  as  Judge 
Bronson  admits,  has  frequently  been  found  fault  with.  It  ap- 
pears to  have  been  followed  by  Judge  Parker  in  another  special 
term  decision,  (Grant  v.  Mb  Caughin,  4:  How.  216,)  where,  in 
opening  a  default  he  refused  to  impose  as  a  condition  that  the 
defendant  should  not  plead  usury.  In  my  mind  this  distinc- 
tion, which  lets  in  this  unconscionable  defence  where  a  judg- 
ment taken  by  default  is  set  aside,  and  excludes  it  when  the 
favor  is  asked  of  amending  a  pleading,  is  a  distinction  more 
nice  than  meritorious.  It  is  in  either  case  a  valid  defence,  and 
as  both  are  applications  made  to  the  favor  of  the  Court,  the  same 
healthy  exercise  of  discretion  which  excludes  it  in  the  one  case 
should  be  equally  exercised  to  exclude  it  in  the  other.  In 
Fort  v.  Bard  supra,  the  Chancellor  refused  to  open  the  judg- 
ment and  allow  the  party  to  set  up  as  a  defence  a  violation  of 
the  restraining  act  without  paying  back  the  money  he  had 
actually  received ;  and  a  party  who  asks,  as  a  favor,  that  a 
judgment  obtained  against  him  be  set  aside  to  enable  him  to 
establish  the  defence  of  usury,  without  giving  back  what  he  has 
received,  asks  the  Court  to  aid  him  to  retain  what  is  not  his, 
after  he  has  lost  the  legal  right  to  insist  that  it  is  forfeited  to 
him.  This  is  going  farther  than  a  Court  is  called  upon  to  go 
in  giving  effect  to  the  statute  against  usury.  It  is  a  very 
severe  statute,  with  the  wisdom  or  policy  of  which  we  have 
nothing  to  do,  and  we  discharge  our  duty  when  we  see  that 
it  is  strictly  administered  in  cases  where  parties  have  the  legal 
right  to  have  its  provisions  applied,  and  we  are  not  called  upon 
to'go  beyond  that.  Fulton  Bank  v.  Beach.  1  Paige,  427.  The 


NEW  YORK—JANUARY,  1863.  279 


Farish  v.  Corlies. 


peculiar  circumstances  of  this  case^  furnish  a  good  illustration  of 
e  propriety  of  adhering  to  the  course  of  doing  nothing  as 
.ter  of  favor  to  enable  parties  to  establish  such  a  defence, 
and  of  leaving  them,  in  all  such  cases,  to  their  strict  legal  right. 
The  action  on  this  note  was  not  between  the  original  parties  to 
the  usurious  agreement,  but  the  plaintiff  is  an  innocent 
holder  for  value,  who  bought  the  note  before  maturity,  from  a 
note  broker,  upon  the  assurance  that  it  was  a  business  note, 
and  the  defendants  themselves,  or  at  least  one  of  them,  were 
the  instruments  by  which  he  was  deceived  into  the  purchase. 
Accompanying  the  note,  in  the  hands  of  the  broker,  was  a  cer- 
tificate signed  by,  and  in  the  handwriting  of,  the  defendant 
Corlies,  declaring  that  it  was  a  business  note,  and  that  it 
would  be  paid  at  maturity,  in  addition  to  which  the  plaintiff 
took  the  further  precaution  of  sending  the  note  to  the  office  of 
the  other  defendant  Burr,  at  which  place  it  was  shown  to  a 
person  who  said  it  was  business  paper,  and  that  the  indorsement 
was  in  Burr's  handwriting.  After  the  inquiry,  which  was  all 
that  a  prudent  man  could  be  expected  to  make,  the  plaintiff 
bought  the  note  at  a  discount,  and  now,  when  he  seeks  to 
recover  the  amount  of  it,  he  is  met  by  the  objection  that  it  is 
void  for  usury.  Even  in  adopting  the  rule  that  a  judgment  by 
default  will  be  set  aside  to  let  in  the  defence  of  usury,  Judge 
Bronson  in  Allen  v.  Mopes  supra,  admits  that  the  nature  of 
such  a  defence  may  be  taken  into  consideration  upon  such 
application  under  very  special  circumstances.  The  circum- 
stances of  the  case  render  it  one  eminently  fitted  to  constitute 
such  an  exception,  but  I  think  the  more  satisfactory  course  and 
the  better  rule  in  all  application  to  the  favor  of  the  Court,  is  to 
shut  out  such  a  defence  altogether,  if  the  party  has  lost  the 
legal  right  to  make  it.  The  order  below  is  affirmed. 


280  COURT  OF  COMMON  PLEAS. 


Trow  v.  Glen  Cove  Starch  Co. 


JOHN  F.  TROW  v.  THE  GLEN  COVE  STARCH  COMPANY. 

A  material  alteration  of  a  written  contract  by  one  of  the  parties  to  it,  without 
the  knowledge  or  consent  of  the  other,  not  only  discharges  the  latter  from 
all  liability  upon  it,  but  if  fraudulently  made,  will  release  him  also  from  all 
liability  upon  the  consideration  for  which  it  was  made. 

Where  the  alteration  was  made  under  a  mistaken  sense  of  right,  or  by  a 
stranger,  without  the  knowledge  of  the  party  interested,  the  latter  will  not 
be  precluded  from  recovering  upon  the  original  consideration.  But  in  such 

'  a  case,  it  is  incumbent  upon  the  interested  party  to  absolve  himself  from 
all  suspicion  of  any  privity  or  knowledge  of  the  fraudulent  act. 

The  plaintiff's  agent  procured  a  written  contract  or  order  from  the  defendants 
for  the  insertion  of  the  defendants'  advertisement  in  the  plaintiff's  Commer 
cial  Register,  at  a  certain  fixed  sum  named  therein.  The  plaintiff  having 
refused  to  accept  the  order  at  the  sum  named  therein,  the  agent  fraudulently 
and  without  the  knowledge  of  the  defendants,  altered  the  sum  named  to  a 
larger  sum,  and,  as  thus  altered,  the  plaintiff  accepted  the  order  aud  inserted 
the  advertisement.  In  an  action  for  work,  labor,  etc.,  to  recover  the  price 
first  named  in  the  contract, — Held,  that  it  must  appear  affirmatively  on  the 
trial,  that  such  fraudulent  alteration  was  not  made  with  the  knowledge  or 
consent  of  the  plaintiff,  and,  having  failed  to  establish  that  fact,  the  complaint 
was  properly  dismissed. 

Appeal  by  the  plaintiff  from  a  judgment  of  the  First  District 
Court,  dismissing  the  complaint. 

The  action  was  brought  by  the  proprietor  of  the  New  York 
City  Directory,  to  recover  the  price  of  the  insertion  of  two  bus- 
iness advertisements  in  the  Commercial  Register  annexed  to 
his  Directory,  one  for  thirty-five  dollars,  and  the  other  for  two 
dollars  and  a  half.  The  complaint  was  in  form  for  work  and 
labor  done  by  special  agreement  for  thirty-seven  dollars  and  a 
half,  alleging  non-payment,  and  claiming  judgment  for  that 
amount.  The  grounds  of  the  defence,  and  upon  which  the  jus- 
tice dismissed  the  complaint,  are  fully  stated  in  the  opinion  of 
the  Court. 

;    R.  P.  Lee  for  appellant. 
for  respondent. 

BY  THE  COUBT. — DALY,  F.  J. — The  order  signed  by  Duryea 
was  the  written  contract  by  which  the  defendants  became 


NEW  YORK— JANUARY,  1863.  281 


Trow  v.  Glen  Cove  Starch  Co. 


bound  to  pay  thirty-five  dollars  for  the  insertion  of  their  adver- 
tisement in  the  Directory,  and  any  material  alteration  of  the 
instrument  afterwards,  without  their  consent,  discharged  the 
defendants  from  all  liability  upon  the"  written  contract ;  and  if 
the  alteration  was  fraudulently  made  at  the  instance  or  with 
the  knowledge  of  the  party  to  be  benefited  by  the  contract,  it 
released  the  defendant  also  from  all  liability  upon  the  consider- 
ation which  may  have  been  given  in  pursuance  of  it.  (Newell 
v.  Maylerry,  3  Leigh,  250 ;  Mills  v.  Starr,  2  Bailey,  359  ;  Al- 
der son  v.  Langdale,  3  Barn,  and  Ad.,  660 ;  Clute  v.  Small, 
17  Wend.,  242;  Chitty  on  Contracts',  783,  786.)  "No 
man,"  said  Lord  Kenyon,  referring  to  this  general  princi- 
ple in  Master  v.  Miller  (4  Term  R.,  329),  "  shall  be  permitted 
to  take  the  chance  of  committing  a  fraud  without  running  any 
risk  of  losing  by  the  event  when  it  is  detected."  If  the  altera- 
tion, however,  is  made  under  a  mistaken  sense  of  right,  or  by  a 
stranger,  without  the  knowledge  of  the  party  interested,  the 
latter  will  not,  in  such  a  case,  be  precluded  from  recovering  on 
the  original  consideration.  (Atkinson  v.  JSandon,  2  Ad.  and 
Ellis,  628  ;  Sutton  v.  Toomer,  7  Barn,  and  Ores.,  416  ;  Jack- 
son v.  Malin,  15  Johns.,  297  ;  1  Wend.,  658.) 

Bigelow,  an  agent  employed  by  the  plaintiff  to  solicit  adver- 
tisements for  the  Commercial  Register  accompanying  Trow's 
New  York  City  Directory,  called  at  the  office  of  the  defendant 
to  obtain  their  advertisement.  He  saw  Mr.  Duryea,  the  sec- 
retary of  the  defendant ;  and  there  is  a  direct  conflict  between 
him  and  Duryea  as  to  what  took  place  at  that  interview,  as 
well  as  to  what  occurred  with  the  knowledge  of  Duryea  after- 
wards. We  must  assume  from  the  judgment  the  Justice  ren- 
dered, that  he  discredited  Bigelow  in  every  particular  in  which 
he  was  contradicted  by  Duryea,  and  must  regard  the  state- 
ment of  Duryea  as  containing  the  correct  version  of  what  oc- 
curred. Duryea,  on  a  second  interview,  agreed  to  give  thirty- 
five  dollars  for  the  insertion  of  the  advertisement,  to  which 
proposition  Bigelow  assented,  and  presented  a  printed  order  on 
H.  Wilson,  the  compiler  of  the  Directory,  requesting  the  in- 
sertion of  the  advertisementj  and  agreeing  to  pay  thirty-five 
dollars  for  it,  which  Duryea  signed,  as  agent  of  the  company  ; 
Bigelow,  however,  remarking  that  he  could  not  insert  it  for 
thirty-five  dollars  without  speaking  to  Wilson ;  that  he  would 


2*82  COURT  OF  COMMON  PLEAS. 


Trow  v.  Glen  Cove  Starch  Co. 


speak  to  him  and  come  back.  Bigelow  says  that  he  saw  Wil- 
son, and  that  he  refused  to  take  the  advertisement  at  that 
price ;  that  he  then  called  upon  Duryea,  and  told  him  that 
Wilson  would  not  insert  it  for  less  than  forty  dollars,  and  that 
he  made  the  alteration  from  thirty-five  to  forty  dollars  with 
Duryea's  consent.  This  Duryea  absolutely  denied,  and  testified 
that  he  did  not  see  the  order  again,  or  know  anything  about 
the  alteration  of  it,  until  after  the  publication  of  the  Directory, 
when  a  bill  was  presented  to  him  for  forty  dollars. 

As  the  defendants,  intended  to  have  their  advertisement  in- 
serted and  to  pay  thirty-five  dollars  for  it,  and  as  they  have  had 
the  benefit  of  that  service,  they  should  not  be  absolved  from 
paying  what  they  agreed  to  pay,  unless  the  plaintiff  is  charge- 
able with  the  fraudulent  alteration  made  by  his  agent.      Inde 
pendent  of  the  discredit  thrown  upon  the  whole  testimony  of 
Bigelow  by  the  finding  of  the  Justice,  the  alteration  itself  bears 
intrinsic  marks  of  having  been  made  fraudulently.      In  the 
printed  order  the  words  "  two  dollars  and  fifty  cents  "  were  ob- 
literated by  a  line  drawn  across  them,  and  the  words  "  thirty- 
five  dollars  "  were  written  in  the  margin  below.      Afterwards, 
the  words  "  thirty-five  dollars  "  were  carefully  erased,  and  the 
words  "  forty  dollars  "  .were  written  over  the  blank  left  by  the 
erasure ;  the  whole  being  done  so  ingeniously  and   skilfully, 
without  any  blot  or  change  from  the  general  character  of  the 
writing  in  the  margin,  that  the  fact  that  the  alteration   had 
been  made  would  not  be  apparent  upon  a  general  observation 
or  reading  of  the  instrument,  but  would  be  manifest  only  upon 
the  attention  being  fixed  upon  the  part  where  the  change  had 
been  made  and  the  figures  thirty-five  dollars  in  the   margin 
were  transformed  into  forty  with  like  ingenuity  and  care.  This 
instrument  was  in  the  plaintiffs  possession,  and  was  indorsed 
by  him,  and  if  he  was  innocent  of  any  knowledge  that  an  alter- 
ation had  been  made,  or  if  advised  by  the  agent  that  made  it 
that  it  had  been  done  with  the  consent  of  the  agent  of  the  de- 
fendants, I  think  he  should  have  appeared  in  the  cause  as  a 
witness,  and  have  established  the  fact  by  his  testimony.    It  wag 
an  alteration  ostensibly  for  his  benefit,  and  it  was  incumbent 
upon  him,  under  the  circumstances,  to  absolve  himself  from  all 
suspicion  of  any  privity  with  or  knowledge  of  the  fraudulent  act. 
If  it  had  appeared  that  it  was  the  dishonest  act  of  the  agent 


NEW   YOKE— JANUARY,  1863.  283 


Reynolds  v.  Kelly. 


alone,  done  with  a  view  of  securing  a  commission  upon  the  ad- 
vertisement obtained,  or  from  any  other  motive,  without  any 
participation  in  it  or  knowledge  of  it  on  the  part  of  the  princi- 
pal, then,  although  the  plaintiff  could  not  sue  upon  the  altered 
instrument  as  a  valid  contract  in  writing,  he  would  not,  in  my 
judgment,  have  been  precluded  from  maintaining  an  action  to 
recover  for  the  service  rendered  at  the  price  which  the  defend- 
ant had  agreed  to  pay ;  but  as  nothing  of  this  kind  was  shown, 
I  think  the  Justice  did  right  in  dismissing  his  complaint. 

The  plaintiff  did  not  rest  upon  the  assumption  in  the  answer 
that  a  card  or  advertisement  of  the  defendant  had  been  pub- 
lished in  the  Directory  during  the  year  1860,  and  very  prop- 
erly, as  the  complaint  merely  averred  in  general  terms  that  the 
plaintiff  had  published  the  business  advertisement  of  the  de- 
fendant in  the  Directory  of  that  year,  without  specifying  or  dis- 
tinguishing any  one  in  particular,  and  it  was  doubtful  therefore 
to  which  of  the  two  advertisements  the  admission  applied.  The 
plaintiff  accordingly  gave  evidence  to  show  that  the  advertise- 
ment for  which  two  dollars  and  a  half  was  claimed  had  been  pub- 
lished at  the  defendants'  request;  the  defendant's  agent  swore 
that  the  bill  had  been  presented  and  paid,  and  as  the  plaintiff 
gave  no  evidence  to  the  contrary,  the  Justice  found  as  he  was  en- 
titled to  do  upon  the  evidence,  that  this  amount  had  been 
paid.  The  judgment  should  be  affirmed. 

Judgment  affirmed. 


JOSIAII  T.  REYNOLDS  v.  JOHN 'KELLY,  Sheriff,  &o. 

The  answer  of  a  witness  that  the  consideration  of  a  sale  of  chattels  was  a  sum 
of  money  and  "  one  hundred  acres  of  land,"  is  not  open  to  objection  on  the       * 
ground  that  it  gives  the  contents  of  a  deed  of  land  not  produced  on  the  trial. 

The  rule  that  questions  arising  upon  conflicting  evidence  must  be  left  to  the 
tribunal  that  hears  the  testimony,  and  sees  the  witnesses  upon  the  stand,  is 
inflexible,  and  the  appellate  court  cannot  invade  it  merely  because  it  thinks 
the  case  warranted  a  different  conclusion. 


284:  COURT  OF  COMMON  PLEAS. 

Reynolds  v.  Kelly. 

Appeal  by  the  defendant  from  a  judgment  of  the  Marine 
Court  at  General  Term. 

The  facts  of  the  case,  and  the  grounds  of  appeal,  are  fully 
stated  in  the  opinion  of  the  Court. 

A.  J.  Vanderpoel  for  appellant. 
Sickles  &  Gushing  for  respondent. 

BY  THE  COURT. — HILTON,  J. — The  plaintiff  claims  to  be  the 
owner  of  a  certain  stock  of  liquors  taken  by  the  defendant 
under  an  attachment  issued  against  the,  property  of  one  Jesse 
Johnson.  The  liquors  appear  to  have  originally  b'elonged  to 
Johnson,  but  now, by  a  bill  of  sale  transferred  by  him,  to  the 
plaintiff.  The  transfer  had  been  negotiated  by  a  brother  of 
the  plaintiff,  who,  upon  being  examined  as  a  witness,  was 
inquired  of  respecting  the  consideration  paid  at  the  time  of  the 
purchase,  and  the  only  question  this  appeal  presents  is,  whether 
the  inquiry  was  properly  made  ;  and  this  is  raised  by  the 
objection  interposed  to  the  following  question  put  by  the 
Court,  viz. : 

"  What  was  the  consideration  for  the  sale  1"  and  the  answer 
allowed  to  be  given  by  the  witness  thereto,  which  was  "  the  in- 
debtedness of  one  hundred  and  twenty-five  dollars  due  for 
moneys  loaned  and  one  hundred  acres  of  land,"  the  objection 
seeming  to  be  founded  on  the  idea  that  the  witness  was  in- 
quired of,  and  allowed  to  testify,  respecting  the  contents  of  a 
deed  without  its  being  produced. 

This  view  is  clearly  a  mistaken  one.  The  question  put  was 
undoubtedly  proper.  "Without  it  the  plaintiff  would  have  been 
deprived  of  the  power  to  show  that  the  sale  from  Johnson  had 
any  validity  as  to  his  creditors,  as  the  transfer  could  not  have 
been  upheld  unless  a  valuable  consideration  for  it  had  been 
shown,  and  as  that  being  established,  the  presumption  of  good 
faith  at  once  attached. 

Nor  was  the  answer  open  to  the  objection  stated.  An 
answer  that  the  consideration  was  a  sum  of  money  and  one 
hundred  acres  of  land,  does  not  give  the  contents  of  a  writing 
in  any  objectionable  sense.  It  was  in  this  instance  merely 
giving  a  direct  response  to  a  question  properly  put,  and  to-  say 
that  it  should  have  been  excluded  because  the  deed  conveying 


YORK— JANUARY,  1863.  285 

< 

Mcllhenny  v.  Wasson. 

the  land  was  not  produced,  would  in  effect  deny  to  a  party  in 
very  many  instances  the  privilege  of  proving  ownership  of 
property  purchased  for  a  vendor  in  embarrassed  circumstances 
when  creditors  sought  to  avoid  the  sale.  It  is  not  usually 
in  the  power  of  a  purchaser  in  such  a  case  to  produce  a  deed 
which  he  has  delivered  to  a  vendor  as  the  consideration  for  the 
transfer,  and  I  may  add,  that  the  fact  of  his  having  it  ready  to 
produce,  unaccompanied  by  clear  proof  .that  he  had  obtained  it 
for  the  purposes  of  the  trial  alone,  would  be  a  circumstance  so 
suspicious  that  a  Court  or  jury  might  well  hesitate  to  uphold  a 
transaction  founded  upon  a  consideration  so  within  the  control 
of  the  purchaser  that  he  might  at  his  pleasure  repossess  him- 
self of  it. 

I  regret  the  necessity  which  in  this  instance  leads  me  to  the 
conclusion  that  the  judgment  must  be  affirmed  ;  because  if  the 
case  as  printed  correctly  presents  the  whole  of  the  testimony 
given  at  the  trial,  the  proof  of  the  plaintiff's  ownership  of  the 
property  and  its  value  was  so  suspicious  and  doubtful,  that  a 
judgment  in  the  defendant's  favor  would  not  have  been  dis- 
turbed. But  the  rule  that  questions  arising  upon  conflicting 
evidence  should  be  left  to  the  tribunal  that  hears  the  testimony 
and  sees  the  witness  upon  the  stand  is  inflexible,  and  we  can- 
not invade  it  merely  because  we  think  the  case  would  seem  to 
have  warranted  a  different  conclusion  from  the  one  arrived  at. 

Judgment  affirmed. 


JOHN  MclLHENNY  v.  ELIAS  WASSON. 

The  appeal  from  a  district  court  of  the  city  of  New  York  is  to  the  General 
Term  of  the  Court  of  Common  Plefcs,  in  that  city,  and  the  provision  of  the 
act  of  1862,  authorizing  a  re-trial  of  cases  tried  in  a  Justices  court  in  a 
County  court,  does  not  apply  to  the  city  of  New  York. 

Appeal  by  tie  defendant  from  a  judgment  of  the  Eighth 
District  Court. 


COURT  OF  COMMON  PLEAS. 


Mcllhenny  v.  Wasson. 


The  plaintiff  recovered  a  judgment  in  the  Eighth  District 
Court  of  the  City  of  New  York  against  the  defendant,  for 
$175  13,  on  the  10th  day  of  Jnly,  1862. 

The  appellant,  being  advised  by  his  counsel  that  the  Laws 
of  1862,  page  853,  authorized  him  to  appeal  to  the  trial  term 
of  the  Court  of  Common  Pleas  of  the  County  of  New  York, 
did  so  appeal,  and  noticed  the  cause  for  trial,  at  a  trial  term  of 
the  Court  of  Common  Pleas.  In  the  mean  time  the  attorney 
for  the  respondent  noticed  the  appeal  for  argument  at  the 
General  Term  of  the  Court  of  Common  Pleas,  and  placed  the 
same  on  the  calendar  of  said  General  Term. 

The  appellant  now  objected  to  the  jurisdiction  of  the  General 
Term  to  hear  said  appeal,  and  insisted  that  the  cause  be  struck 
from  the  calendar,  and  that  the  same  be  tried  at  the  trial  term 
of  the  Common  Pleas. 

Silly  Courtney  &  Monell,  for  the  appellants. 

I.  The  whole  of  §  352   of  the  Code  remains  as  it  was,  and 
specifies  how  appeals  from  the  judgment  of  the  Court  may  be 
taken,  and  to  what  Court,  and  then  provides — On  such  appeal, 
when  the  amount  of  the  claim  or  claims  of  either  party  litigat- 
ed in  the  Court  below  exceed  fifty  dollars,  or  when  in  an  ac- 
tion to  recover  the  value"  of  personal  property,  &c.,  a  new  trial 
shall  be  had  in  the  County  Court,  &c. 

II.  Section  364  is  amended  so  as  to  read  as  follows — "  If  a 
return  be  made,  and  the  appeal  is  from  a  judgment  where  a 
new  trial  may  not  be  had,  (that  is,  when  the  judgment  is  not 
over  fifty  dollars,)  it  may  be  brought  to  a  hearing  at  a  General 
Term  of  the  Appellant  Court,  &c. ;  but  if  the  appeal  is  from  a 
judgment  where  a  new  trial  may  be  had,  it  may  be  brought  to 
a  hearing  or  trial  at  any  term  of  the  County  Court  at  which  a 
petit  jury  shall  be  summoned." 

III.  Every  Judge  of  the  Court  of  Common  Pleas  is  a  County 
Judge,  and  every  trial  term  of  the  Court  of  Common  Pleas  is 
a  County  Court,  and  hence  the  trial  term  of  the  Court  of  Com- 
mon Pleas  is  a  County  Court  under  the  meaning  of  section  25. 


NEW  YORK— JANUARY,  1863.  287 

Mcllhenny  v.  "Wasson. 

IY.  The  intention  of  the  Legislature  was  to  permit  a  party 
feeling  aggrieved  by  the  action  of  a  Justice  of  the  Peace  to 
have  the  case  retried  in  another  Court.  There  is  nothing  novel 
in  the  amendment.  It  restores  the  old  statute,  which  will  be 
found  in  Second  Vol.,  3d  ed.  E.  S.  page  357. 

Y.  Independent  of  the  considerations  above  stated,  the  lan- 
guage of  the  ainendment,by  the  23d  Section  of  the  Laws  of 
1862,  expressly  directs  the  appeal  to  the  Court  of  Common 
Pleas,  and  not  to  the  general  term  of  the  Court. 

The  Legislature,  on  referring  to  the  General  Term  of  the 
Appellate  Court,  makes  use  of  the  word  "  General"  in  cases 
where  no  new  trial  can  be  had,  and  in  other  cases  where  the 
retrial  can  be  had,  the  word  "  General "  is  studiously  omitted. 

YI.  Sections  364  and  366  of  the  Code  are  so  amended  by 
the  Act  of  1862  as  to  deprive  this  Court  from  giving  judgment 
on  an  appeal  in  any  other  manner  than  is  therein  provided, 
viz. :  if  the  amount  litigated  in  the  Court  below  be  under  fifty 
dollars,  then  the  appeal  is  to  be  heard  at  the  General  term,  but 
if  over  that  amount,  then  at  the  trial  term  of  the  Court.  If  this 
Court  decline  to  adopt  tho  proceedings  on  appeal  as  provided 
for  by  the  Act  of  1862,  then  it  can  entertain  no  jurisdiction  of 
appeals  in  any  case — at  all  events  as  to  none  where  the  amount 
is  over  fifty  dollars. 

BY  THE  COURT. — HILTON,  J. — The  simple  question  presented 
to  us  for  determination  upon  this  appeal,  is,  .whether  under 
the  provisions  of  Chap.  5  of  Title  11,  of  the  Code  as  amended 
April  23,  1862,  a  new  trial  must  be  had  in  this  Court  in 
all  cases  of  appeal  from  the  Marine  and  District  Courts  where 
there  has  been  an  issue  joined  and  the  amount  involved 
exceeds  fifty  dollars. 

Section  352  of  the  title  referred  to,  and  upon  the  construction 
of  which  this  question  depends,  as  amended  is  in  substance  as 
follows. 

When  a  judgment  has  been  rendered  by  the  General  Term 
of  the  Marine  Court,  or  by  a  Justice  of  the  District  or  Justices' 
Courts  of  this  city,  the  appeal  shall  be  to  this  Court,  and  the 
appeal  from  the  Marine  Court  must,  like  that  from  the  District 


288  COUHT  OF  COMMON  PLEAS. 

McDhenny  v.  Wasson. 

Courts,  be  taken  within  twenty  days  after  the  judgment.  In 
the  city  of  Buffalo  the  appeals  from  the  Courts  of  Justice  of 
that  city  must  be  to  the  Superior  Court  therein. 

When  the  judgment  has  been  rendered  by  any  of  the  other 
Courts  enumerated  in  the  preceding  section  (351),  that  is, 
Justices'  Courts  of  other  cities  than  New  York  -and  Buffalo, 
the  Municipal  Court  of  the  city  of  Brooklyn  and  Courts  of 
Justices ,  of  the  Peace  throughout  the  State,  the  appeal  must 
be  to  the  County  Court  of  the  County.  And  on  such  appeals, 
where  issue  has  been  joined  and  the  amount  involved  exceeds 
fifty  dollars,  a  new  trial  shall  be  had  in  such  County  Court. 

It  seems  to  us  quite  plain  that  the  expression  "such  appeal" 
in  the  connection  in  which  it  is  used  in  this  section,  refers  to 
the  appeal  which  is  required  to  be  taken  to  the  County  Court, 
eo  nomine  ;  and  has  no  relation  to  the  appeals  which  must  be 
taken  to  this  Court,  and  to  the  Superior  Court  of  the  city 
of  Buffalo. 

The  remaining  sections  of  the  title,  which  were  amended  at 
the  same  time,  are  in  no  sense  repugnant  to  this  construction, 
but  on  the  contrary  fully  harmonize  with  it. 

Therefore  in  all  appeals  to  this  Court  from  the  Marine  and 
District  Courts,  the  former  practice  still  prevails  unaffected  by 
amendments  of  1862,  except  so  far  as  the  costs  therein  are 
regulated  by  the  amendment  to  section  371. 

Judgment  affirmed. 


Schieffelin  v.  Hawkins. 




SAMUEL  B.  SCHIKFFBLIN,  and  others,  v.  RUSH  C.  HAWKINS, 

and  others. 


In  cases  of  cross-indebtedness  growing  out  of  mutual  dealings,  a  court  of  equity 
will  always  interpose  to  set  off  one  debt  against  the  other,  and  adjudge  the 
balance  to  be  the  sum  equitably  due. 

One  of  the  cross-debtors,  after  the  contract  creating  the  debt  had  been  exe- 
cuted, and  his  liability  fixed,  made  an  assignment  for  the  benefit  of  his  cred- 
itors. Held,  that  this  did  not  affect  the  equitable  right  of  the  other  to  set- 
off  his  debt. 

A  general  assignee  for  the  benefit  of  creditors  succeeds  merely  to  the  rights  of 
the  assignor.  He  is  not,  in  respect  to  the  property  transferred,  a  bona  fide 
holder  for  value,  but  takes  it  as  a  trustee,  subject  to  any  equities  which  may 
exist  between  the  debtor  and  his  creditors. 

An  injunction  to  restrain  the  assignee  from  disposing  of  the  evidence  of  the 
plaintiff's  indebedness,  is  a  necessary  part  of  the  relief  sought  in  such  an 
action,  and  a  motion  to  vacate  it  was  denied. 

At  SPECIAL  Term,  March,  1862. 

Motion  for  judgment  on  demurrer  to  the  complaint. 

The  action  was  brought  to  compel  an  equitable  set  off  of  cross 
claims  arising  as  follows  :  On  the  22nd  of  May,  1860,  the  defend- 
ants  Duclos  &  Co.  bought  of  the  plaintiffs  a  bill  of  goods- 
amounting  to  one  thousand  two  hundred  and  fifty-three  dollars- 
and  fifty-two  cents,  for  which  they  gave  the  plaintiffs  their 
promissory  note,  payable  in  six  months.  About  a  fortnight 
before  the  note  came  due,  that  is,  on  the  9th  of  November, 
1860,  the  plaintiffs  purchased  of  Duclos  &  Co.  a  bill  of  goods 
amounting  to  one  thousand  five  hundred  and  ninety-three  dol- 
lars and  twenty-three  cents,  upon  a  credit  of  six  months,  the 
principal  part  of  which  consisted  of  the  same  goods  which 
Duclos  &  Co.  had  purchased  of  the  plaintiffs,  and  for  which 
the  note  above  referred  to  was  given ;  and  in  a  week  after- 
wards, that  is,  on  the  15th  of  November,  1860,  Duclos  &  Co. 
made  a  general  assignment  to  the  defendant  Hawkins  for  the 
benefit  of  creditors. 
19 


COURT  OF  COMMON  PLEAS. 


Schieffelin  v.  Hawkins. 


When  the  assignment  was  made,  neither  of  the  cross  demands 
were  due.  The  note  of  Duclos  &  Co.  fell  due  ten  days  after 
the  assignment,  while  the  claim  against  the  plaintiffs  did  not 
mature  until  nearly  six  months  afterwards. 

When  it  fell  due,  the  plaintiffs  brought  the  present  action  to 
restrain  Hawkins  from  assigning  or  disposing  of  it,  and,  as  it 
exceeds  the  note  in  amount,  that  so  much  of  it  as  will  suffice 
may  be  set  off  against,  and  in  extinguishment  of,  the  note.  The 
defendant  Hawkins  demurred  to  the  complaint,  and  the  plain- 
tiffs moved  for  judgment  on  the  demurrer. 

DALY,  F.  J. — This  is  a  -case  of  cross  indebtedness  growing 
out  of  mutual  dealing,  and  in  such  cases,  a  court  of  equity, 
especially  where  one  of  the  cross  debtors  is  insolvent,  will 
always  interpose,  setting  off  one  debt  against  the  other,  and 
adjudging  the  balance  to  be  the  sum  which  is  equitably  due, 
(Lord  LanesborougK  v.  Jones,  1  P.  Wms.,  230 ;  Hawkins  v. 
freeman,  2  Eq.  Gas.  Abr.  10 ;  Pond  v.  Smith,  4  Con.,  302 ; 
Bobbins  v.  Hawley,  1  Monroe,  194 ;  Lindsay  v.  Jackson,  2 
Paige  581 ;  Story's  Eq.  Jur.,  §  1436.) 

This  power  existed  in  courts'  of  equity  before  any  statute  of 
set  off  was  passed.  (Anon.,  1  Mad.,  215.)  "Set  offs  were 
allowed,"  says  Chief  Justice  Ewing,  in  The  State  v.  Welslead 
(6  Halst.,  398),  "  satisfying  one  demand  by  means  of  another, 
not  because  of  the  statute,  but  because  it  was  incidental  to  the 
due  administration  of  the  law  and  flowing  from  the  right  to 
control  suitors  to  such  a  course  as  is  demanded  by  equity 
and  justice ;  .  .  .  but  this  extraordinary  power  will  be 
exercised  only  where  demands  are  fixed  and  ascertained."  It 
is  not  however,  sufficient,  that  a  demand  is  liquidated  or  ascer- 
tained. Before  the  Court  will  order  it  to  be  set  off,  it  must 
also  be  due.  Thus  it  was  held  by  the  Court  of  Appeals,  in 
Bradley  v.  Angel  (3  N.  Y.,  475),  that  a  set  off  would  not  be 
ordered  in  equity  where  the  cross  demand  against  an  insolvent 
was  not  yet  due — the  reason  for  which  is  obvious.  The  insol. 
vent  is  entitled  to  the  full  period  of  credit,  and  until  he  is  bound 
to  pay  the  debt,  a  debt  due  to  him  cannot  be  set  off  against  it. 
Whatever  maybe  the  effects  of  his  insolvency,  the  Court  cannot 
change  the  contract  of  the  parties.  But  where  the  debt  owing 


NEW  YOKK— JANUAKY,  1863.  291 


Schieffelin  v.  Hawkins. 


to  the  insolvent  has  become  due,  it  is  not  necessary  to  wait 
until  the  cross  claim  is  payable,  as  the  continuance  of  the  credit 
in  that  case  is  a  matter  solely  for  the  benefit  oY  the  other  party, 
which  he  may,  if  he  think  proper,  waive.  (Lindsay  v.  Jackson, 
2  Paige,  581.) 

In  the  present  case,  neither  of  the  cross  demands  were  due 
when  Duclos  &  Co.  made  their  assignment,  though  the  amounts 
respectively  owing  by  each  were  then  ascertained  and  fixed* 
Now,  however,  that  they  are  c^jie,  and  that  this  application  is 
made  to  the  equitable  power  of  the  Court  to  set  off  the  one 
against  the  other,  the  question  arises  whether  the  right  which 
would  otherwise  exist  has  been  losLby  the  transfer  of  the  claim 
against  the  plaintiffs  to  Hawkins. 

In  Chance  v.-  Isaacs  (5  Paige,  592,)  Chancellor  "Walworth 
declared  that  when  a  demand  is  not  due  at  the  time  of  an 
assignment,  but  will  become  due  before  the  cross  demand,  an 
equitable  right  of  set  off  exists,  of  which  it  would  be  unconsei- 
entious  to  deprive  the  other  party  by  assigning  the  claim  against 
him  to  an  assignee  for  the  benefit  of  creditors ;  but  the  point 
arose  incidentally,  and  was  not  essential  to  the  decision  of  the 
case. 

The  question,  however,  came  up  directly  before  the  Superior 
Court,  in  Keep  v.  Lord,  (2  Duer,  78),  a  case  that  differed  from 
the  present  only  in  the  circumstance  that  the  cross  demands 
there  were  independent  and  disconnected,  while  here  they 
grew  out  of  mutual  dealings,  a  distinction  which  is  not  material, 
it  being  well  settled  that  the  insolvency  of  one  of  the  cross 
debtors,  even  where  demands  are  independent  and  disconnected, 
is  a  sufficient  ground  in  equity  for  compelling  a  set  off.  '(Merriti 
v.  bowler,  6  Dana,  306  ;  Bobbins  v.  Hawley,  1  Monroe,  194  ; 
Pond  v.  Smith,  4  Con.,  302 ;  /Simpson  v.  Hart:  14  Johns.,  63; 
•Lindsay  v.  Jackson,  2  Paige,  581 ;  fiawson  v.  Samuel^,  1  Craig 
and  Phillip,  161.) 

In  this  case  of  Keep  v.  Lord,  the  opinion  of  Chancellor  Wai- 
Worth  was  considered  and  dissented  from  ;  and  it  was  there 
held  that  as  the  claim  against  the  insolvent  was  not  due  when 
he  made  his  assignment  for  the  benefit  of  creditors,  that  the 
assignee  took  the  cross  demand  divested  of  any  right  on  the 
part  of  the  solvent  debtor  to  set  off  against  it  the  claim  owing 


292  COURT  OF  COMMON  PLEAS. 

Schieffelin  v.  Hawkins. 

by  the  insolvent  when  that  claim  became  due.  The  ground 
taken  by  the  Court  was,  that  the  right  of  set  off  must  attach 
at  the  time  when  the  assignment  is  made ;  that  it  did  not  attach 
then,  as  neither  of  the  claims  were  due,  and  could  not  rise 
afterwards  when  they  did  become  due  as  the  claim  against 
the  plaintiff  had  passed  before  that  event  to  the  assignee.  A 
similar  decision  growing  out  of  the  assignment  in  the  present 
case  was  pronounced  by  Mr.  Justice  Hoffman,  sitting  at  the 
special  term. 

In  Moos  v.  Goodman  (2  Hilt.,  275),  the  general  term  of  this 
Court,  reversing  a  decision  at  the  special  term,  dissented  from 
the  view  taken  by  the  Superior  Court  in  Keep  v.  Lord,  and 
held  in  an  action  brought  by  an  assignee  for  the  benefit  of  credi- 
tors to  recover  for  a  bill  of  goods  sold  by  the  insolvent  before 
his  assignment  to  the  defendants,  that  the  defendants  were  en- 
titled to  set  off  a  note  made  by  the  insolvent,  and  held  by 
them  when  the  bill  of  goods  was  sold  to  them,  though  the  note 
was  not  due  or  payable  until  several  months  after  the  assign- 
ment. In  that  case,  as  in  this,  the  debt  owing  by  the  insolvent 
became  due  before  the  cross  demand. 

Since  that  decision  was  made,  the  case  of  Myers  v.  Davis 
(22  N.  Y.,  489)  has  been  decided  in  the  Court  of  Appeals,  a  case 
relied  upon  by  the  defendant  Hawkins  as  in  conflict  with  our 
decision  in  Moos  v.  Goodman,  and  as  sustaining  the  decision 
of  the  Superior  Court  in  Keep  v.  Lord.  Upon  examining  that 
case,  however,  it  will  be  found  that  it  does  not  affect  or  touck 
the  question  now  under  consideration.  In  that  case  an  action 
was  brought  by  an  assignee  for  the  benefit  of  creditors,  to 
recover  for  goods  sold  by  the  insolvents  to  the  defendant  be- 
fore their  assignment  ;  and  it  was  held  that  the  defendant  could 
not  set  off  against  the  debt  a  claim  for  articles  ordered  by  the 
insolvent  of  the  defendant  before  their  assignment,  but  which* 
were  not  manufactured  by  him  until  several  months  afterwards. 
In  this  case,  the  debt  proposed  to  be  set  off  had  not  been 
created  when  the  assignment  was  made.  The  contract  was  then 
executory,  and  one  which  the  defendant  was  under  no  obliga- 
tion to  perform  after  the  parties  to  it  had  become  insolvent. 
If  he  saw  fit  after  that  event  to  go  on  and  execute  the  order, 
it  gave  him  undoubtedly  a  claim  against  the  insolvents,  but 


NEW  YORE— JANUARY,  1863.  293 

Schieffelin.  v.  Hawkins. 

none  against  the  estate  which  they  had  previously  assigned. 
The  claim  against  the  defendant  was  a  subsisting  liability  when 
the  assignment  was  made.  It  was  for  goods  sold  and  delivered 
to  him  by  the  insolvent,  and  no  right  of  set  off  attached  to  it, 
as  no  liability  on  the  part  of  the  insolvents  had  then  grown  out 
of  the  performance  of  any  contract  on  the  part  of  the  defendant. 

While  anything  remains  to  be  done  under  an  executory  con- 
tract, it  cannot  be  the  subject  of  a  set  off.  It  must  be  executed, 
or  all  that  the  party  is  required  to  do  must  be  done,  before  it 
can  be  enforced  for  any  purpose,  whether  by  way  of  set  off  or 
otherwise.  The  equitable  right  of  set  off  attaches  only  in 
cases  where  the  respective  liabilities  have  been  fully  ascer- 
tained, liquidated  and  fixed.  This  was  not  the  case  in  Myers  v. 
Da/cis,  but  it  was  in  the  present  case.  When  the  assignment 
was  made  here,  each  of  the  cross  debtors  had  received  the  con- 
sideration upon  which  his  obligation  was  founded.  The  amounts 
respectively  due  were  ascertained,  and  the  day  of  payment 
fixed,  and  in  the  order  of  payment  the  plaintiffs  were  entitled 
to  receive  from  the  insolvents  the  amount  of  the  note  in  their 
hands  long  before  they  could  be  called  upon  to  pay  the  note 
given  by  them.  The  reciprocal  obligations  having  had  their 
origin  in  mutual  credits,  and  the  consideration  for  each  having 
been  fully  received,  an  equitable  right  of  set  off  existed,  which 
the  plaintiffs  had  the  right  to  compel  aa  soon  as  the  note 
of  Duclos  &  Co.  was  past  due,  and  which  could  be  defeated 
only  by  a  transfer  of  the  plaintiffs'  note  to  a  bona  fide  holder. 

The  assignee  in  this  case  was  not  a  bona  fide  holder ;  and 
the  error  of  the  Superior  Court,  in  Keep  v.  Lord,  as  pointed 
out  by  Judge  Brady,  in  Maas  v.  Goodman,  consisted  in  apply- 
ing to  a  general  assignee  for  the  benefit  of  creditors  a  rule 
that  is  applicable  only  when  an  assignment  is  made  to  an  insol- 
vent purchaser  for  value.  Brown  v.  Heathcote,  (lAtk.,  162). 
That  the  court  did  not  consider  that  there  was  any  distinction 
is  apparent  from  a  case  reported  in  the  same  volume  {Hicks  v. 
McGrorty,  2  Duer,  295,)  in  which  it  was  decided  that  an  as- 
signee for  the  benefit  of  creditors  has  as  against  a  set  off  all  the 
protection  that  is  afforded  to  an  assignee  for  value.  No  author- 
ity is  cited  in  the  opinion  of  the  court  in  support  of  this  decis- 
ion, nor  is  any  referred  to  upon  the  argument,  except  the  case 


294  COURT    OF   COMMON   PLEAS. 

Schieffelin  v.  Hawkins. 

of  Jackson  v.  Bloodgood  (1  Johns.  Cas.,  51),  a  case  that  by  no 
means  warrants  any  snch  conclusion  ;  all  that  the  'Court  held 
in  that  case  being,  that  the  defendant  could  not  set  off  against 
his  own  debt  a  note  of  the  insolvent  purchased  after  it  was 
due,  and  the  defendant  had  constructive  notice  that  the  insol- 
vent had  made  a  general  assignment  to  the  plaintiff  for  the 
benefit  of  creditors  ;  while  on  the  contrary,  there  are  a  number 
of  cases  in  this  State,  the  conclusion  to  be  adduced  from 
which  is  that  such  an  assignee  is  not  to  be  regarded  as  a  pur- 
chaser for  value,  and  is  in  no  better  position  in  enforcing 
choses  in  action,  transferred  by  the  assignment,  then  the  in- 
solvent would  be.  (Clason  v.  Morris,  10  Johns.,  525  ;  Cartis  v. 
Leamtt,  15  N.  Y.,  195  ;  Van  Heusen  v.  Radcliffe,  17  Id.,  580  ; 
Griffin  v.  Marquardt,  1  Id.,  28 ;  Leger  v.  Bonaffe,  2  Barb.,  475 ; 
Warren  v.  Fenn,  28  Id-.,  333;  Marine  Fire  Ins.  Bank  of 
Georgia  v.  Jauncy,  Id.,  486  ;  Matter  of  Howe,  1  Paige,  125  ; 
Mead  v.  Philips,  1  Sandf.  ch.,  83  ;  Murry  v.  Lylhurn,  2  Johns, 
ch.,  443.) 

A  general  assignee  for  the  benefit  of  creditors  succeeds 
merely  to  the  rights  of  the  assignor.  He  is  not,  in  respect  to 
the  property  transferred,  a  bona  fide  holder  for  value,  but  takes 
it  simply  as  a  trustee,  subject  to  any  equities  which  may  exist 
between  the  debtor  and  his  creditors.  It  is  an  appropriation 
by  the  debtor  of  his  property,  in  trust,  for  the  payment  of  his 
debt,  in  the  order  and  manner  specified ;  an  act  by  wliich  he 
divests  himself  of  it  for  the  time  being,  without  altogether 
parting  with  his  interest  in  it ;  for,  should  any  property  or  its 
proceeds  remain  after  the  trust  is  executed,  it  returns  to  him. 

In  Van  Waggener  v.  The  Paterson  Gas-light  Co.  (3  Zabris- 
kie,  N.  J.  283),  it  was  said  that  the  general  doctrine  is,  that  a 
debtor  is  entitled  to  the  same  allowance  by  way  of  set  offs 
against  the  claim  of  an  assignee  for  the  benefit  of  creditors  that 
lie  would  have  against  the  insolvent  himself.  Assignments  of 
this  nature  transfer  the  rights  of  the  insolvent  to  the  assignee, 
precisely  in  the  same  condition  as  he  possessed  them.  In  Trow  v. 
Ferguson,  (11  Ala.  885)  the  Court  says  ;  "  The  general  assignee 
of  a  debtor  in  failing  circumstances  stands  precisely  in  the  same 
condition  as  the  debtor  himself,  "  and  in  Knowles  v.  Lord,  (4 
Wharton,  507),  "Such  an  assignment  does  not  place  the  as- 


KEW  YORK— JANUARY,  1863.  295 


Schieffelin  v.  Hawkins. 


signee  in  any  different  situation  in  point  of  equity  than  the 
assignor  himself ;"  and  in  an  early  case  (Redoubt  v.  Brough, 
Cowp.,  131)  it  was  declared  that>  as  respects  the  right  of  set  off 
the  assignee  occupied  the  same  position  as  the  bankrupt. 
Assignments  of  this  nature  have  been  aptly  termed  by  Chief 
Justice  Gibson,  "  a  bankrupt  law  made  by  the  debtor  for  the 
benefit  of  himself"  (5  Rawle,  321) ;  and  viewed  in  this  light, 
the  principle  laid  down  in  the  English  Courts  of  equity,  in 
assignments  to  commissioners  in  bankruptcy,  is  applicable — 
that  assignees  of  this  character,  in  the  language  of  Lord  Hard- 
wicke,  "  though  they  are  trustees  for  creditors,  yet  stand  in  the 
place  of  the  bankrupt,  and  can  take  in  no  better  manner  than 
he  could."  (Brown  v.  Heathcote,  1  Atk.  162.)  "  They  are  not," 
says  Lord  Eldon  in  Mitford  v.  Mitford  (9  Yes., -100),  "  consid- 
ered purchasers  for  valuable  consideration.  The  rights  of  the 
bankrupt  pass  precisely  in  the  same  plight  and  condition  in 
which  he  possessed  them.  Even  where  a  complete  legal  title 
vests  in  them,  and  there  is  no  notice  of  any  equity  affecting  it, 
they  take,  subject  to  whatever  equity  the  bankrupt  was 
entitled  to." 

There  was,  as  I  have  already  stated,  an  ascertained  and  sub- 
sisting equity  between  the  plaintiffs  and  Duclos  &  Co.,  when 
they  made  their  assignment,  which  was  not,  and»could  not  be, 
affected  by  that  instrument.  The  defendant  Hawkins,  as  their 
assignee,  stands  precisely  in  the  same  condition  as  they  did, 
and  now  that  their  note  is  due  and  payable,  the  plaintiffs  are 
entitled  to  have  it  set  off  against  the  debt  owing  by  them. 

•The  demurrer  is  therefore  overruled. 

All  the  Judges  concurred  in  the  decision. 

GENERAL  Term,  January,  1863. 

Subsequently,  a  motion  was  made  in  this  case  to  vacate  an 
injunction  which  had  been  granted  to  restrain  the  assignee, 
Hawkins,  from  disposing  of  the  note  of  the  plaintiffs.  The 
motion  was  denied,  and  the  defendant  Hawkins  appealed  to 
the  General  Term. 

Dextpr  A.  Hawkins,  for  appellant. 
E.  &  E.  F.  Brown,  for  respondents. 

BY  THE  COURT. — DALY,  F.  J. — I  have  already  expressed  my 
views  upon  this  case  at  Special  Term  in  overruling  the  de- 


296  COCJKT  OF  COMMON  PLEAS. 

Schieffelin  v.  Hawkins. 

inurrer  to  the  complaint,  and  have  nothing  to  add  to  the  rea- 
sons I  theu  gave,  in  support  of  the  conclusions  that  the  plaintiffs 
were  entitled  to  the  equitable. relief  which  they  seek  in  the 
action.  If  the  action  is  maintainable,  the  injunction  to  re- 
strain Hawkins  from  disposing  of  the  note  is  a  necessary  part 
of  the  relief  sought,  and  the  motion  to  vacate  it  was  therefore 
properly  denied. 

The  order  appealed  from  should  be  affirmed  with  costs. 


THE  MAYOR,  &o.  OP  THE  CITY  OF  NEW  YOEK  -y.  CHABLES  V. 
LYONS  and  WILLIAM  H.  CHAKLOCK. 

In  an  action  against  a  constable's  bond  in  the  city  of  New  York,  where  it  has 
been  adjudged  that  the  answer  was  frivolous,  it  is  erroneous  to  enter  up  a 
general  judgment  for  the  sum  mentioned  in  the  complaint. 

Judgment  should  be  entered  up  for  the  penalty  of  the  bond,  and  the  Court 
moved  for  an  order,  under  the  act  of  1813,  directing  so  much  money  to  be 
levied  upon  the  judgment  as  shall  be  sufficient  to  satisfy  the  debt  or  dam* 
ages  of  the  party  aggrieved. 

In 'such  an  action,  the  summons  should  be  for  relief,  under  subd.  2  of  §  129  of 
the  Code.  '"*• 

An  irregularity  in  the  mode  of  entering  up  a  judgment,  is  waived  by  an  ap- 
peal from  the  judgment ;  and  after  an  affirmance  upon  the  appeal,  a  motion 
to  set  aside  the  judgment  for  irregularity  will  not  be  entertained. 

The  defendants  having  lost  the  right  to  move  to  set  aside  the  judgment,  upon 
the  ground  of  irregularity,  the  Court  permitted  the  plaintiff  to  amend  the 
judgment  by  entering  it  up  for  the  penalty,  that  other  suitors,  if  any, 
might  be  enabled  to  have  the  amounts  recovered  by  them  levied  under  the 
judgment. 

APPEAL  by  the  plaintiff  from  an  order  made  at  Special 
Term,  setting  aside  a  judgment  as  irregularly  entered. 

One  Mary  Higgins  obtained  a  judgment  in  the  Fourth  Dis- 
trict Court,  against  the  defendant  Lyons,  who  is  a  constable  in 
the  city  of  New  York,  for  official  misconduct,  and  on  the  re- 


NEW  YOKE— JANUAKY,  1863.  297 

Mayor  &c.  of  New  York  v.  Lyons. 

turn  of  the  execution  unsatisfied,  leave  was  obtained  of  the 
Court  of  Common  Pleas  to  commence  an  action  upon  Lyons' 
bond. 

An  action  was  commenced  against  Lyons  and  his  surety 
Charlock.  The  summons  was  for  a  money  demand  on  contract, 
and  the  complaint  claimed  to  recover  the  sum  of  $97  25,  with 
interest  from  the  date  of  the  recovery  of  the  judgment  against 
Lyons.  The  defendants  appeared  and  answered,  and  on  a  mo- 
tion for  judgment  upon  the  ground  of  the  frivolousness  of  the 
answers,  the  Judge  at  Special  Term  decided  that  the  answers 
contained  no  defence,  and  ordered  judgment  to  he  entered  up 
for  the  amount  claimed. 

From  the  judgment  thus  obtained,  an  appeal  was  taken  by 
the  defendants  to  the  General  Term,  where  it  was  affirmed. 

Subsequently  a  motion  was  made  by  the  defendants  at  Spe- 
cial Term  to  vacate  and  set  aside  the  judgment  for  irregularity. 

The  motion  was  granted,  with  the  following  opinion,  by 

HILTON,  J. — The  action  being  to  recover  damages  for  a 
breach  of  the  covenant  in  the  defendapt's  bond,  the  summons 
should  have  been  in  the  form  prescribed  by  Sec.  129  of  the 
Code,  sub.  2 ;  but  by  appearing  and  answering,  the  defendants 
waived  in  this  respect  the  defect  in  the  summons  served. 

They  were  entitled,  however,  to  notice  of  assessment  of  the 
plaintiffs  damages  ;  and  as  it  appeared  from  the  roll  filed  that 
they  had  not  such  notice,  and  indeed  that  the  damages  of  the 
plaintiffs  have  not  been  assessed  or  ascertained  in  the  due  or 
proper  manner,  the  judgment  entered  is  therefore  irregular, 
and  must  be  vacated.  (Tuttle  v.  Smith,  14  How.  Pr.  454 ; 
Code,  §  246,  sub.2.)  In  all  actions  of  this  nature,  the  damage 
must  be  assessed  by  a  jury  or  ascertained  by  a  referee,  as  the 
Court  may  direct.  (3  Itev.  St.  5th  ed.  661,  §  7.) 

Motion  granted. 

From  the  order  entered,  the  plaintiff  appealed  to  the  Gene- 
ral Term. 

Bernard  Hughes,  for  appellants. 

I.  The  judgment  sought  to  be  set  aside  for  irregularity,  hav- 
ing been  affirmed  by  the  General  Term  on  appeal,  became  a 


298  COUKT  OF  COMMON  PLEAS. 

Mayor  &c.  of  New  York  v.  Lyons. 

judgment  of  the  General  Term,  and  could  pot  be  disturbed  or 
set  aside  by  a  Judge  sitting  at  Special  Term.  The  appeal  was 
a  trial  of  a  question  of  law  on  the  merits,  and  was  a  waiver  of 
all  irregularities  in  the  judgment.  (  Wood  v.  Randall,  5  Hill, 
264  ;  Malcomc  v.  Baker ',  8  How.  Pr.  303  ;  Englis  v.  Fumess, 
8  Abbott's  Pr.  83.) 

II.  It  was  not  necessary  that  the  plaintiff's  damages  should 
have  been  reassessed  by  a  jury  or  referee  before  the  entry  of 
judgment.  (1)  The  act  providing  for  the  recovery  on  a  con- 
stable's bond  provides  fot  the  manner  in  which  the  liability 
of  the  sureties  in  the  constable's  bond  shall  be  ascertained.  A 
recovery  against  the  constable  is  conclusive  evidence  of  the 
liability  of  the  sureties.  (Davies'  Laws,  518 ;  Carpenter  v. 
Doody,  1  Hilton,  467.)  (2.)  The  plaintiff's  damages  were  al- 
ready assessed,  first  by  the  previous  recovery  against  the  con- 
stable, and  second,  by  the«Judge  at  Special  Term,  when  he  or- 
dered judgment  for  the  plaintiffs  on  the  pleadings. 

D.  M.  O'Brien  for  respondents. 

The  judgment  as  entered  up  was  clearly  irregular.  The 
judgment  should  have  been  entered  up  for  the  full  penalty  of 
'the  bond  (five  hundred  dollars),  and  there  should  have  been  an 
application  to  the  Court,  on  notice,  for  relief ;  so  that  the  dam- 
ages sustained  by  the  plaintiffs  might  be  assessed  by  writ  of 
inquiry,  or  otherwise,  as  the  Court  might  direct.  (2  Rev.  Stat., 
4th  ed.  627,  §  7.) 

BY  THE  COUET. — DALY,  F.  J. — This  judgment  was  undoubt- 
edly irregular.  The  condition  of  the  bond  npon  which  the 
action  was  brought  was  that  the  defendant  Lyons  would  well  and 
faithfully  execute  the  office  of  constable,  and  the  mode  of  pro- 
ceeding in  an  action  upon  bonds  of  this  nature  is  regulated  in 
part  by  the  147th  section  of  the  act  to  reduce  several  laws  re- 
lating to  the  City  of  New  York  into  one  act  (Rev.  Laws  of  1813, 
p.  396),  and  in  part  by  Art.  2,  Tit.  VI.,  Chap.  YL,  Part  III. 
of  the  Revised  Statutes  pointing  out  tho  mode  of  proceeding  in 
action  upon  bonds  for  the  performance  of  covenants.  It  is  not, 
in  the  sense  of  the  fifth  section  of  the  article  referred  to  in  the 


NEW   YOKE— JANUARY,  1863.  299 

Mayor  &c.  of  New  York  v.  Lyons. 

Revised  Statutes,  a  bond  for  the  payment  of  money.  The  de- 
scription of  bond  there  meant  is  one  for  the  payment  of  money 
in  gross,  the  amount  and  the  time  for  the  payment  of  which  is 
fixed  by  the  condition  of  the  bond,  and  in  which  no  assessment 
of  damages  is  necessary,  as  nothing  remains  but  to  compute 
the  amount  of  interest,  which  may  be  ascertained  by  the  clerk 
(Graham's  Practice,  503,  2  ed.) ;  but  it  comes  under  the  general 
class  there  referred  to  in  which  the  plaintiff  must  set  outjn  his 
complaint  the  specific  breaches  for  which  the  action  is  brought. 
This  article  in  the  Revised  Statutes  is  not  repealed,  the  only 
modification  it  has  undergone  being  the  provision  of  the 
Code  which  allows  the  Court  to  take  the  proof,  or  to  order  a 
reference  to  ascertain  the  damages,  when  a  judgment  is  taken 
in  an  action  upon  such  a  bond  by  default. 

The  147th  section  of  the  Act  of  1813  declares  that  where  a 
recovery  is  had  against  a  constable  by  a  party  aggrieved 
through  the  officer's  default  or  misconduct,  that  such  party 
may  obtain  an  order  in  this  Court  that  the  bond  be  put  in  suit, 
and  if  judgment  is  recovered,  the  act  directs  that  this  Court 
shall,  upon  motion,  direct  so  much  money  to  be  levied  upon 
the  judgment  as  shall  be  sufficient  to  pay  the  party  the  debt  or 
damages,  so  recovered,  with  costs,  to  be  paid  to  the  party 
aggrieved.  If  there  has  been  an  appearance  in  the  cause,  this 
motion  must  be  made  upon  notice  to  the  opposite  party,  (King 
v.  Stafford,  5  How.,  30 ;)  and  since  the  Code,  sec.  246,  the 
Court,  instead  of  directing  an  assessment,  as  was  formerly  the 
practice,  or  a  reference,  may  hear  the  proof  of  the  recovery 
of  the  judgment  against  the  officer,  and  if  satisfied  of  the  fact, 
make  the  order  provided  for  in  the  act  referred  to.  Instead 
of  doing  this,  the  plaintiff,  upon  its  being  adjudged  that  the 
answer  was  frivolous,  took  a  general  judgment  for  the  sum- 
mentioned  in  his  complaint.  This  was  erroneous.  He  should 
have  entered  up  judgment  for  the  penalty  of  the  bond,  and  then 
moved  the  Court  for  the  order  provided  for  by  the  Act  of  1813. 

But  although  the  mode  in  which  the  judgment  was  entered 
•was  irregular,  the  defendants  waived  the  irregularity  by 
appealing  from  the  judgment  to  the  General  Term  ;  and  judg- 
ment having  been  given  against  them  on  the  appeal,  they  could 
not  afterwards  move  to  have  the  judgment  set  aside  for  irregu- 


300  COUET  OF  COMMON  PLEAS. 

Mayor  Sue.  of  New  York  v.  Lyons. 

« 

larity.  It  is  a  general  and  long-established  rule,  in  all  appli- 
cations to  set  aside  proceedings  for  irregularity,  that  th&  party 
complaining  of  it  must  make  his  application  at  the  first  oppor- 
tunity after  he  has  knowledge  of  the  fact,  'and  before  any 
further  proceedings  have  been  had.  It  is,  said  Lord  Kenyon 
in  Pearson  v.  fiauling  (1  East,  77,)  "  the  universal  practice  of 
the  Court,  that  when  there  has  been  an  irregularity,  if  the 
party,  overlook  it  and  take  subsequent  steps  in  the  cause, 
he  cannot  afterwards  revert  back  to  the  irregularity  and  object 
to  it ;"  and  to  the  same  effect  are,  D' Argent  v.  Vivant,  1 
East.,  330  ;  Fox  v.  Money,  1  Bos.  &  Pul.,  250 ;  The  King  v. 
Perry,  5  T.  R,  464 ;  Petrie  v.  White,  4  id.,  10.  At  first  it  was 
questioned  whether  the  rule  was  not  confined  to  cases  where 
the  party  complaining  of  the  irregularity  had  tak  en  some  sub- 
sequent step,  but  in  Downs  v.  Wiiherington,  2  Taunt.,  243,  it 
was  held  to  apply  equally  where  the  party  with  knowledge  of 
the  irregularity  remained  passive,  and  allowed  the  other  party 
to  take  a  subsequent  step ;  and  in  Thorpe  v.  Beer,  2  Barn.  & 
Aid.,  548,  as  indicating  the  general  policy  of  the  Courts  upon 
the  subject,  it  was  held,  that  where  a  party  moves  for  irregu- 
larity he  is  bound  to  state  every  irregularity  of  which  he  wishes 
to  take  advantage,  and  is  considered  to  have  waived  all  those 
which  he  does  not  state  at  the  time.  The  principle  of  this  rule 
applies  equally  whether  the  motion  is  made  before  or  after 
judgment.  In  Jones  v.  Dunning,  2  Johns.  C.,  74,  the  defend- 
ant moved  after  judgment,  and  the  Court  denied  the  appli- 
cation upon  the  ground  that  they  had  suffered  two  terms  of  the 
Court  to  go  by,  when  it  was  to  be  presumed  that  they  had 
notice  of  the  proceedings  against  them,  and  to  the  same  effect 
are  Sharp  v.  Pell,  10  Johns.,  487  ;  Rowan  v.  Lytle,  4  Cow., 
91 ;  Graham's  Practice,  702,  2d  ed. 

The  defendants  in  the  present  case  knew  of  the  irregularity, 
as  they  appealed  from  the  judgment,  and  if  they  wished 
to  avail  themselves  of  it  they  should  have  moved  to  set  the 
judgment  aside,  instead  of  taking  an  appeal  from  the  order  di- 
recting the  entry  of  the  judgment,  and  from  the  judgment. 
The  error  in  the  mode  of  entering  up  the  judgment  could  not 
be  reviewed  upon  appeal.  (Whitehead  v.  Atten,  28  Barb., 
661 ;  King  v.  Stafford,  5  How.,  30.) 


NEW  YORK— JANUARY,  1863.  301 

Mayor  &c.  of  New  York  v.  Lyons. 

The  appeal,  therefore,  must  have  been  brought  upon  other 
grounds,  or  for  delay  ;  and  it  is  not  to  be  tolerated  that  a  par- 
ty, knowing  that  the  judgment  is  irregularly  entered  up,  shall 
be  at  liberty  to  appeal  from  it  to  the  General  Term  ;  and  if  he 
fails  there,  go  to  the  Court  of  Appeals ;  and  ultimately  failing, 
to  get  the  judgment  reversed,  be  permitted  to  do  then  what  he 
ought  to  have  done  in  the  beginning,  that  is,  to  move  the 
Court  to  set  the  judgment  aside  as  irregularly  entered,  with- 
out putting  the  other  party  to  the  expense  and  trouble  of  the 
appeal.  It  may  be  said  that  as  the  error  consists  in  the  way  in 
which  the  judgment  was  entered^  the  Court  ought,  for  the 
benefit  of  other  parties  who  may  recover  judgment  against  the 
same  officer,  to  see  that  it  is  properly  entered  up  for  the  penalty. 
We  do  not  know  that  any  other  parties  will  have  occasion  to 
bring  suits  against  this  officer,  and  we  can  see  that  no  injustice 
has  been  done,  as  this  judgment  is  for  the  amount  which  the  par- 
ty would  in  any  event  be  entitled  to ;  or,  as  was  done  in  Martin 
v.  Lott,  (4  Abbott's  R.,  365,)  the  defendant's  application  could 
have  been  denied,  with  costs,  upon  the  ground  that  they  had 
lost  the  right  to  make  it ;  and  for  the  benefit  of  other  parties, 
should  any  recover  judgments  against  the  officer  for  official 
misconduct,  and  that  the  defendants  may  not  be  made  liable 
beyond  the  penal  limits  of  their  bond,  the  plaintiff  could,  and 
under  the  circumstances  should,  have  been  permitted  to 
amend  his  judgment  by  entering  it  up  for  the  penalty,  with  a 
further  judgment  that  he  have  execution  for  the  amount  recov- 
ered against  the  officer,  and  costs.  The  order  appealed  from 
should  in  my  opinion  be  modified  to  that  effect.  The  defend- 
ants having  lost  the  right  to  move  upon  the  ground  of  irregu- 
larity, cannot  complain  of  an  order  directing  that  the  judg- 
ment be  entered  up  properly  ;  that  other  suitors,  if  any  there 
should  be,  may  be  enabled  to  have  the  amounts  recovered  by 
them  levied  under  this  judgment  in  the  way  in  which  the 
statute  provides.  (Davies's  Laws,  549.) 

The  other  Judges  concurred. 


302  COURT  OF  COMMON  PLEAS. 


Thompson  v.  Harrison. 


JOHN  H.  THOMPSON  v.  HENBY  G.  HARRISON. 

The  redemption  of  a  promissory  note  by  the  pledgor,  on  payment  of  an  ad- 
•  vance  made  upon  it  as  collateral  security,  will  not  carry  with  it  the  equitable 

right  of  set  off  against  the  pledgee,  in  a  suit  by  the  pledgor  against  the  maker 

of  the  note. 

The  fact  that  the  pledgee,  while  the  note  was  in  his  hands,  brought  suit  upon 
it  in  his  own  name,  is  mere  matter  of  evidence  of  ownership ;  and  it  being 
found  as  a  fact  on  the  trial,  that  the  note  was  deposited  as  collateral  merely, 
— Held,  that  a  counter-claim  against  the  pledgee  was  properly  disregarded. 

• 

APPEAL  by  the  defendant  from  a  judgment  of  the  Eighth 
District  Court. 

The  facts  are  stated  fully  in  the  opinion  of  the  Court. 

A  M.  Burr,  for  appellant. 
A.  H.  Wagner,  for  respondent. 

.  BY  THE  COURT. — DALY,  F.  J. — This  action  was  brought  upon 
a  note  made  by  the  defendant  to  the  order  of  the  plaintiff. 
Before  the  note  became  due,  the  plaintiff  borrowed  twenty 
dollars  upon  it  from  one  Powell,  and  indorsed  it  to  Powell  to 
be  held  by  him  as  collateral  security.  The  note  was  not  paid 
when  it  fell  due,  and  Powell  brought  it  back  to  the  plaintiff, 
who,  being  unable  to  pay  back  the  twenty  dollars,  told 
Powell  to  sue  upon  it,  and  take  out  what  was  due  him. 
Powell  accordingly  brought  an  action  upon  the  note  in  his 
own  name  against  the  defendant,  and  the  defendant  set 
up  in  that  action  as  a  counter-claim  a  note  made  by  Powell 
for  a  greater  amount  which  was  past  due,  and  which  the  de- 
fendant had  purchased  from  the  assignee  of  the  payee.  No 
further  proceeding  would  seem  to  have  been  taken  in  the  ac- 
tion, at  least  it  does  not  appear  that  any  thing  further  was  done 
after  the  pleadings  were  put  in.  Powell  then  returned  the  note 
to  the  plaintiff  who  paid  him  back  the  twenty  dollars  and  his 
expenses,  and  the  plaintiff  commenced  the  present  suit,  to 
which  the  defendant  set  up  the  note  made  by  Powell  as  a 
counter-claim.  It  constituted  no  defence  whatever,  and  the 
justice  properly  gave  judgment  for  the  plaintiff. 

Judgment  affirmed.  , 


NEW  YORK— FEBRUARY,  1863.  303 

Baxter  y.  Wallace. 


JOHN  C.  BAXTER   and  others  v.  ROBERT  B.  WALLACE. 


A  person  whose  real  interest  in  a  vessel  is  only  that  of  a  mortgagee,  and  who  has 
never  taken  possession  of  the  same,  is  not  answerable  for  supplies,  although 
he  holds  a  bill  of  sale,  vesting  in  him  the  legal  title,  and  the  vessel  is  regis- 
tered in  his  name  at  the  custom  house. 

The  registration  of  a  vessel  at  the  custom  house,  under  a  bill  of  sale,  although 
accompanied  by  the  oath  of  the  person  in  whose  name  it  is  registered  that  he 
is  the  true  and  only  owner,  ia  not  conclusive  as  to  the  ownership. 

To  make  a  mortgagee  responsible  for  supplies,  it  must  be  shown  either  that  he 
•was  in  possession  of  the  vessel,  or  that  the  supplies  were  furnished  at  his  re- 
quest, or  by  the  direction  of  some  person  authorized  to  contract  in  his  behalfl 

APPEAL  by  the  defendant  from  a  judgment  of  the  Eighth  Dis- 
trict Court. 

The  action  was  brought  to  recover  from  the  defendant  the 
value  of  certain  supplies  furnished  to  the  brig  Hope,  in  the  port 
of  New  Fork. 

It  appeared  in  evidence  on  the  trial  that  the  defendant  loaned 
one  Webster  a  sum  of  money,  to  secure  which  Webster  caused 
to  be  executed  to  the  defendant  a  bill  of  sale  of  the  brig,  which 
vessel  Webster  had  purchased  at  a  Marshal's  sale.  Webster 
took  a  paper  in  the  nature  of  a  defeasance,  wherein  it  was  pro- 
vided" that  upon  the  re-payment  of  the  loan,  with  interest,  the 
defendant  was  to  re-convey  to  him  or  to  his  order,  the  title  of 
thS  vessel. 

The  defendant  assumed  no  control  over  the  vessel.  The 
supplies  for  which  the  action  was  brought,  were  obtained  from 
the  plaintiffs  by  the  mate  of  the  brig,  upon  the  introduction  of 
Webster,  the  purchaser  and  mortgagor,  and  it  appeared  that 
the  profits  of  her  voyage  accrued  wholly  to  Webster,  and  not 
to  the  defendant. 

Judgment  was  rendered  for  the  plaintiff,  and  the  defendant 
appealed  to  this  Court. 


304  COURT  OF  COMMON  PLEAS. 
_  Baxter  v.  Wallace. 

Dennis  McMahon,  for  the  appellant. 
A.  S.  Diossy,  for  the  respondent. 

BY  THE  COURT. — DALY,  F.  J. — The  plaintiffs  sought  to  charge 
the  defendant  Wallace  as  owner  of  the  brig  Hope,  for  supplies 
furnished  to  the  brig  in  the  port  of  New  York,  where  the  ves- 
sel belonged.  To  charge  the  defendant  personally  it  was  neces- 
sary to  show  that  the  supplies  were  famished  either  by  his  ex- 
press authority,  or  under  circumstances  from  which  an 
authority  would  be  implied.  The  supplies  were  furnished  at 
the  request  of  the  mate  of  the  vessel  and  one  "Webster.  "Web- 
ster introduced  the  mate  to  the  plaintiffs,  and  told  them  to  de- 
liver what  goods  he  might  order  for  the  brig,  and  to  present 
the  bill  on  board,  and  that  it  would  be  paid.  The  plaintiffs 
produced  no  evidence  to  show  that  either  Webster  or  the  mate 
had  any  authority  from  the  defendant  to  order  the  supplies,  and 
the  defendant  swore  expressly  that  he  had  never  authorized  any 
person  to  present  the  bill  to  him ;  that  he  did  not  know  the 
mate ;  had  never  had  any  transactions  with  him  ;  that  he  never 
had  possession  of  ihe  vessel ;  had  never  seen  her  but  once  ;'had 
nothing  to  do  with  the  loading  of  her ;  did  not  control  her  run- 
ning in  any  way ;  had  no  interest  in  her  profits,  and  had  never 
employed  any  officer  or  any  one  on  board  of  her.  This  was 
decisive  upon  the  question  of  authority,  and  as  the  plaintiffs 
were  allowed  to  recover  it  must  have  been  upon  the  ground  that 
the  defendant  held  a  bill  of  sale  of  the  brig,  and  had  made  the 
usual  affidavit  at  the  Custom  House  that  he  was  the  owner  of 
the  vessel.  - 

The  nature  of  his  interest  was  this :  Webster  bought  the 
brig  at  a  Marshal's  sale,  and  to  complete  the  purchase  he  bor- 
rowed $800  of  the  defendant  upon  an  agreement  that  the  title 
should  be  taken  in  the  defendant's  name  as  a  security  for  the 
loan.  The  bill  of  sale  was  accordingly  made  out  in  the  name 
of  the  defendant,  and  a  written  instrument  in  the  nature  of  a 
defeasance  was  executed  by  both  parties,  setting  forth  that 
Wallace  bad  loaned  Webster  $800  for  the  purpose  of  enabling 
him  to  purchase  the  brig ;  that  it  was  agreed  that  the  title 
should  be  in  Wallace,  and  that  Wallace,  upon  the  payment  to 
him  of  the  $800  and  interest,  was  to  transfer  the  vessel  to  Web- 
ster or  his  order.  This  was  not  such  an  ownership  as  would 


1SEW  YOKK— FEBRUAKY,  1863.  305 


Baxter  v.  "Wallace. 


make  the  defendant  responsible  for  supplies  furnished  to  the 
vessel,  though  the  bill  of  sale  was  made  out  in  the  name  of 
the  defendant.  The  transaction,  as  shown  by  both  instruments 
was,  in  legal  effect,  a  mortgage.  He  held  the  bill  of  sale 
merely  as  security  for  the  eight  hundred  dollars,  and  though  the 
legal  title  was  vested  in  him,  his  interest  was  no  greater  than 
that  of  a  mortgagee. 

It  is  well  settled  that  a  person  whose  real  interest  is  that  of 
a  mortgagee,  and  who  has  never  taken  possession  of  the  vessel, 
is  not  answerable  for  supplies,  though  he  holds  a  bill  of  sale 
vesting  in  him  the  legal  title,  and  though  the  vessel  had  been 
registered  in  his  name.  (Noartyman  v.  Hart,  1  Stark.  R.  366  ; 
Hasketh  v.  Stephens,  7  Barb.,  488  ;  Leonard  v.  Huntington,  15 
Johns.,  298  ;  Molntyre  v.  Scott,  8  id.,  159  ;  Abbott  on  Shipping, 
p.  35  to  40,  132,  8th  Lond.  ed.) 

The  registration  of  a  vessel  at  the  Custom  House  under  a 
bill  of  sale,  although  accompanied  by  an  oath  that  the  person 
in  whose  name  it  is  registered  is  the  true  and  only  owner, 
is  not  conclusive  as  to  the  ownership,  the  object  of  the  registry 
being  simply  to  determine  the  national  character  of  the  vessel  ;• 
and  though  a  bill  of  sale  is  absolute  upon  its  face,  it  may  be 
shown  that  it  was  intended  in  fact  to  operate  as  a  mortgage. 
(Sharp  v.  United  States  Ins.  Co.,  14  Johns.,  201  ;  Weston  v. 
Penniman,  1  Mason,  318  ;  Ring  v.  Franklin,  2  Hall  R.  1 ; 
Dey  v.  Dunham,  15  Johns.,  555.) 

To  make  a  mortgagee  responsible  for  supplies  it  must  be  shown 
either  that  he  was  in  possession  of  the  vessel  (Miln  v.  Spi- 
nola,  4Tlill,  177),  or  that  they  were  furnished  at  his  request 
or  by  the  direction  of  some  person  authorized  to  contract  on 
his  behalf.  Nothing  of  the  kind  was  shown  here,  and  there  was 
no  ground  whatever  for  the  judgment. 

Judgment  reversed. 
20 


506  COURT  OF  COMMON  PLEAS. 

Le  Sage  v.  Great  Western  Railway  Co. 


CLINTON  LE  SAGE  and  AUGUSTUS  L.  LIVINGSTON  v.  THE  GREAT 

WESTERN  RAILWAY  COMPANY,  and  THE  DETROIT  AND 

MILWAUKEE  RAILROAD  COMPANY. 

The  defendants,  who  are  common  carriers,  running  connecting  lines , of  rail- 
way from  Buffalo  to  Milwaukee,  through  their  mutual  agent  hi  the  city 
of  New  York  took  from  the  plaintiffs  the  receipt  of  the  Hudson  River  Rail- 
road Company,  for  certain  goods  marked,  "  Janesville,  Wis.,  via  M.  D.  R. 
R.,"  and  gave  therefor  a  bill  of  lading,  whereby  it  was  agreed  that  the  de- 
fendants would  transport  said  goods  over  their  lines  to  Milwaukee.  At 
Buffalo,  the  goods,  instead  of  being  delivered  to,  or  received  by  the  defend- 
ants, were  delivered  on  board  a  propeller,  to  be  carried  thence  by  lake  to 
Milwaukee.  The  propeller  and  her  cargo  were  lost  on  her  passage. 

Held, — in  an  action  against  the  defendants  to  recover  damages  for  the  loss, 
that  as  the  receipt  of  the  Hudson  Railroad  for  the  goods  was  given  to  the 
mutual  agent  of  the  defendants,  and  as  the  holder  of  that  receipt  was  enti- 
tled to  the  custody  of  the  goods  upon  their  arrival  at  Buffalo,  it  was  incum- 
bent upon  the  defendants  to  explain  how  it  was  that  the  goods  were  for- 
warded from  Buffalo  by  a  different  route  than  theirs,  and  that  it  occurred 
under  circumstances  exonerating  them  from  responsibility. 

By  appearing  and  pleading  to  the  merits,  the  defendants  waive  all  objections 
to  the  form  of  the  summons. 

APPEAL  by  the  defendants  from  a  judgment  of  the  Marine 

Court  at  General  Term. 

• 

The  action  was  brought  to  recover  the  value  of  five  bales  of 
cordage  and  rope,  received  by  the  defendants  for  shipment 
from  New  York  to  Milwaukee.  The  goods  were  delivered  by 
the  plaintiffs  to  the  Hudson  River  Railroad  Company  at  New 
York,  and  on  presentation  of  the  receipt  of  that  Company  at 
the  office  of  one  Beach,  the  joint  agent  of  the  defendants  in 
New  York,  the  agent  gave  a  bill  of  lading  as  follows  : 

"  NEW  YORK,  November  15,  1860. 

"  Received  of  S.  &  L.  (Receipt  of  H.  R.  R.  R.,)  three  bales 
"  cordage,  two  ditto  rope,  which  goods  the  Great  Western,  and 
"  Detroit  and  Milwaukee  Railways  agree  to  transport  over  their 
"lines  to  Milwaukee,  at  the  rates  herewith  mentioned,"  &c.  &c. 


NEW  YOKE— JULY,  1863.  307 

Le  Sage  v.  Great  Western  Railway  Co. 

In  the  margin  of  the  bill  of  lading  it  was  declared  that  "  no 
liability  is  assumed  for  miscarriage  or  wrong  delivery  of  goods 
that  were  not  properly  marked,  and  as  directed  by  bills  issued 
at  this  office." 

The  goods  were  marked,  as  stated  by  the  Hudson  Eiver 
Railroad  receipt,  "  E.  S.  Barrows,  Janesville,  "Wis.,  via  M.  D. 
R.  R."  It  was  admitted  on  the  trial  that  the  goods 
were  carried  by  the  Hudson  River  Railroad  to  Albany,  where 
they  were  delivered  by  that  Company  to  the  New  York  Central 
Railroad,  and  consigned  by  the  latter  Company,  as  per  its  way 
bill,  to  Buffalo.  At  Buffalo  the  goods  were  shipped  on  board 
of  the  propeller  Dacotah  for  Milwaukee,  by  Lakes  Erie  and 
Michigan.  The  propeller  and  her  cargo  were  lost  on  Lake  Erie 
in  a  storm.  . 

The  defence  was  that  by  the  defendant's  rules  and  regula- 
tions, which  they  allege  were  known  to  the  plaintiffs,  all 
goods  and  property  delivered  or  to  be  delivered  to  them,  to  be 
transmitted  over  their  roads,  should  be  distinctly  marked 
"  via  Gr.  W.  &  D.  &  M.,"  or  "  D.  &  M.  all  rail ;"  and  if  the 
plaintiff's  goods  had  been  so  marked,  they  would  .have  been 
delivered  to  the  defendants  at  Suspension  Bridge,  and  by  them 
transported  over  their  roads  to  Milwaukee. 

At  the  trial,  the  plaintiff's  agent  who  procured  the  bill  of 
lading,  testified  that  no  questions  were  asked  as  to  how  the 
goods  were  marked,  and  nothing  was  said  to  him  in  reference 
thereto  by  the  defendant's  agent. 

The  jury  rendered  a  verdict  for  the  plaintiffs. 

Luther  R.  Marsh  for  appellants. 
Baldwin  &  Farnham  for  respondents. 

BY  THE  COURT. — DALY,  F.  J. — By  appearing  and  pleading 
to  the  merits,  the  defendants  waived  all  objections  to  the  form 
of  the  summons.  (Gosling  v.  Broach,  1  Hilt.,  49.) 

The  receipt  or  bill  of  lading  is  in  the  name  of  both  of  the  de- 
fendants and  is  signed  by  Beach  as  their  agent.  Upon  its  face 
it  is  an  acknowledgment  of  the  receipt  by  them  of  the  five 
bales,  marked  as  in  the  margin  of  the  bill,  to  be  transported 
over  their  lines  to  Milwaukee.  The  clerk  who  obtained  it  de- 
clared that  nothing  was  said  to  him  as  to  the  manner  in  which 
the  goods  were  marked ;  that  he  presented  the  receipt  of  the 


308  COUKT  OF  COMMON  PLEAS. 

Le  Sage  v.  Great  Western  Railway  Co. 

Hudson  River  Railroad  Company  at  Beach's  office,  Beach  not 
being  there,  and  gave  it  to  a  young  man  who  gave  him  the  bill 
of  lading ;  aiid  that  no  questions  were  put  to  him  as  to  how  the 
goods  were  marked.  Beach  and  the  young  man  Haight  testi- 
fied to  a  very  different  state  of  facts  which,  if  true,  would  have 
exempted  the  defendants  from  all  responsibility  for  the  loss  of 
the  goods.  The  jury,  having  found  for  the  plaintiffs,  they 
must  have  discredited  the  statements  of  Beach  and  Haight,  and 
their  finding  upon  such  a  point  is  conclusive. 

The  bales  were  not  in  the  actual  custody  of  either  of  the  defend- 
ants at  the  time  of  their  loss  upon  the  propeller  on  Lake  Erie. 
Their  mutual  agent  received  the  receipt  of  the  Hudson  River 
Railroad  Co.  He  or  the  holder  of  the  receipt  was  alone  en- 
titled to  receive  them  in  Buffalo,  and  if  they  wer.e  sent  on  a 
different  route  from  the  road  of  either  of  the  defendants,  it  was 
upon  the  defendants  to  show  how  that  occurred,  and  that  it  was 
under  circumstances  that  would  relieve  them  from  responsibility. 
Their  mutual  agent  by  taking  the  receipt  and  giving  a  bill  of 
lading,  assumed  the  control  and  transportation  of  the  property 
from  Buffalo  to  Milwaukee.  He  engaged  to  transport  it  first 
by  the  Great  Western  and  afterwards  by  the  Detroit  and  Mil- 
waukee road,  as  marked  and  directed,  charging  the  full  freight 
for  its  carriage  by  their  connecting  routes,  and  it  is  now  well 
settled  that  an  agent  of  a  railroad  corporation  may  bind  his 
principal  by  such  a  contract,  (Hart  v.  The  Rensselaer  and  Sara- 
toga Railroad  Co.,  4  Seld.,  37 ;  Quimby  v.  Vanderbilt,  17  N.  Y. 
312  ;  Mallory  v.  JSurniU,  1  E.  D.  Smith,  234.)  I  see  nothing 
in  the  case  to  disturb  the  judgment. 

Judgment  affirmed 


NEW  YORK—JULY,  1863.  309 


Dubois  v.  Thompson. 


NATHANIEL  N.  DUBOIS  v.  JOHN  THOMPSON. 

A  broker  who  receives  money  with  specific  instructions  to  purchase  with  it 
certain  stock,  and  neglects  to  do  so,  but  uses  it  for  some  other  purpose,  and 
not  for  the  benefit  of  his  principal,  is  liable  to  arrest  under  section  179  of  the 
Code. 

The  mere  fact  that  the  principal  has  accepted  as  security  certain  bonds  for  the 
amount  of  his  deposit  with  the  broker,  does  not  change  the  character  of  the 
latter's  liability. 

APPEAL  by  the  defendant  from   an  order  at  Special  Term 
denying  a  motion  to  vacate  an  order  of  arrest. 
The  facts  sufficiently  appear  in  the  opinion  of  the  Court. 

E.  More,  for  appellant. 

Henry  E.  Knox  and  William  Fullerton,  for  respondent. 

BY  THB  COTJET. — BRADY,  J. — In  May,  1857,  the  defendant, 
who  was  then  a  stock-broker,  was  instructed  by  the  plaintiff 
to  purchase  for  him  thirty  shares  of  the  Delaware  and  Hudson 
Canal  Company  stock,  at  a  certain  price  per  share,  and  was 
put  in  funds  to  do  so  by  the  deposit  with  him  of  securities,  by 
the  sale  of  which  he  realized  three  thousand  seven  hundred  and 
ninety-nine  dollars  and  seventy  cents.  He  neglected  to  make 
the  purchase,  and  in  August  following  the  plaintiff  having 
called  upon  him  for  the  stock  and  having  discovered  that  it 
had  not  been  purchased,  again  instructed  him  to  buy,  but  to 
buy  a  number  of  shares  of  the  Pennsylvania  coal  companies  and 
a  certain  number  of  second  mortgage  bonds  of  the  Terre 
Haute  and  Alton  Railroad  Company.  The  defendant  also  neg- 
lected to  make  these  purchases,  and  excuses  himself  upon  the 
assertion  that  he  was  invested  with  discretionary  power,  and 
before  it  could  be  exercised  to  the  plaintiff's  greatest  benefit,  he 
was  crushed  by  the  panic  of  1857,  and  rendered  unable  to 
meet  his  engagements.  Whether  the  instructions  in  August 
were  positive  or  not  is  settled  by  the  affidavit  of  Mr. 


SIC  COUKT  OF  COMMON  PLEAS. 

Dubois  v.  Thompson. 

Staples.  He  was  with  the  plaintiff  when  they  were  given,  and 
was  requested  to  call  on  the  defendant  on  behalf  of  the  plain- 
tiff, and  obtain  from  him  the  shares  and  bonds  last  above  men- 
tioned, which  he  did,  and  the  defendant  failed  to  deliver  them. 
The  defendant,  then,  it  appears  received  money  as  a  stock 
broker  for  a  specific  purpose,  and  used  it  for  some  other  purpose, 
and  not  for  the  benefit  of  the  plaintiff.  His  liability  to  arrest 
under  section  179  of  the  Oode  is  a  question  not  open  to  discus- 
sion. His  counsel  seems  to  think,  however,  that  the  order  of 
arrest  should  have  been  vacated,  even  if  the  defendant  was 
not  authorized  to  use  any  discretion,  or  was  liable  to  arrest  on 
the  original  transaction,  because  the  plaintiff  accepted  interest 
on  his  deposit,  and  subsequently  accepted  bonds  of  the  Breck- 
inridge  Coal  Company  in  payment  of  his  debt.  The  plaintiff, 
however,  swears  that  he  received  no  interest  on  the  transaction 
stated,  and  the  books  of  the  defendant  show  that  none  was 
credited.  The  transaction  itself  is  one  in  which  the  plaintiff 
might  have  been  credited  with  interest  from  May  to  August, 
inasmuch  as  the  defendant  had  held  funds  of  his  during  that 
period,  not  as  a  debtor,  but  as  a  broker,  with  specific  instruc- 
tions, which  he  was  violating.  But  the  fact  is  that  no  interest 
was  received  or  allowed.  It  is  equally  certain  that  the  plaintiff 
did  not  accept  the  bonds  spoken  of  in  payment  of  his  debt. 
He  did  accept  them,  but  as  security  only,  and  they  were  inade- 
quate. This  appeal  cannot  for  these  reasons  -be  sustained. 
The  defendant  undertook  to  discharge  a  trust,  and  failed  to  do 
80.  He  must  take  the  consequences. 

Order  appealed  from  affirmed.  I 


NEW  YORK— JULY,  1863.  311 


Vanderpool  v.  Smith. 


JACOB  VANDERPOOL  v.  THOMPSON  SMITH  and  JOHN  W.  WILSON. 

Where  there  is  no  disturbance  of  actual  possession,  or  where  the  holding  over 
by  the  landlord  is  not  with  the  intent  of  keeping  the  tenant  out  of  possession, 
after  he  has  become  entitled  to  it,  there  can  be  no  pretense  of  an  eviclion. 

The  plaintiff  demised  to  the  defendants  a  plot  of  ground  for  ten  years,  which 
they  used  as  a  lumber  yard,  reserving  to  himself  the  right  to  occupy  a  small 
wooden  building  upon  the  land,  for  a  year  and  a  half,  and  which  he  used  for 
the  storage  of  certain  articles  for  one  day  over  the  time,  having  received  no 
intimation  from  the  lessees  of  their  intention  or  wish  to  use  it.  Upon  that 
day  they  notified  him  of  their  intention  to  remove,  upon  the  ground  that 
he  had  broken  the  lease  by  withholding  a  part  of  the  premises,  and  imme- 
diately commenced  removing,  which  occupied  them  eighteen  days. 

Held,  that  there  was  no  disturbance  of  the  lessees'  possession,  as  they  had  never 
been  in  occupation  of  the  building,  and  as  the  holding  over  was  with  no  de- 
sign to  retain  it  against  their  wish,  it  was  simply  an  attempt  to  get  up  an 
eviction,  and  constituted  no  defence  to  an  action  for  the  rent. 

APPEAL  by  the  defendants  from  a  judgment  of  the  Marine 
Court  at  General  Term. 

The  action  was  brought  to  recover  the  sum  of  four  hundred 
dollars,  with  interest,  for  the  rent  of  premises  on  the  First  Ave- 
nue in  the  city  of  New  York,  for  the  quarter  ending  November 
1, 1861.  The  defence  was  eviction.  A  full  statement  of  the 
facts  is  given  in  the  opinion. 

Sheldon  <&  Brown  and  William  Tracy,  for  appellants. 
Francis  Byrne  and  A.  J.  Vanderpoel,  for  respondent. 

BY  THE  COURT. — DALY,  F.  J. — The  defence  set  up  by  the 
answer  is,  that  the  plaintiff  on  the  3d  of  August,  1860,  took 
possession  of  a  one-story  frame  building,  forming  part  of  the 
demised  premises,  and  wrongfully  prevented  the  defendants 
from  the  enjoyment  of  it,  by  withholding  from  them  the 
possession ;  in  consequence  of  which  they  gave  up  and  re- 
moved from  the  whole  of  the  premises,  and  this  defence 


312  ,  COURT  OF  COMMON  PLEAS. 

Vanderpool  v.  Smith. 

is  repeated  over  some  six  times,  with  a  slight  change  in 
the  phraseology,  or  by  changing  the  position  of  the  words, 
as  if  the  pleader  were  desirous  of  showing  the  Court  in  how 
many  different  ways  he  could  say  the  same  thing.  In  each 
form  in  which  it  is  averred  the  defence  set  up  is  an  eviction, 
and  the  only  question  in  the  case  is  whether  the  evidence  given 
upon  the  trial  established  an  eviction. 

The  Court  below,  both  at  special  and  general  term,  held  that 
it  did  not,  and  in  my  opinion  they  were  right.  The  case  is  a 
peculiar  one,  and  the  facts  lie  in  a  narrow  compass.  In 
1860,  the  plaintiff  leased  to  defendants  a  large  plot  of  ground 
on  the  First  Avenue,  between  Thirty -first  and  Thirty-second 
streets,  with  certain  buildings  thereon  for  the  space  of  ten  years, 
which  the  defendants  used  as  a  lumber  yard. 

In  the  lease  the  plaintiff  reserved  to  himself  the  right  of 
occupying  different  parts  of  the  premises  up  to  a  certain  speci- 
fied period,  the  last  of  which  reservations  was  the  right  to  occupy 
a  small  one-story  frame  building  up  to  first  day  of  August,  1861. 

The  frame  building  was  used  by  the  plaintiff  for  the  storage 
of  sand-paper  and  varnish,  in  the  possession  of  which  he  contin- 
ued, the  defendants,  as  he  said,  not  having  required  it,  until 
after  the  1st  of  August,  1861.  On  the  2d  of  August,  the 
defendants  sent  him  a  notice  in  writing,  so  carefully  worded  as 
to  indicate  that  it  was  prepared  by  or  under  the  direction  of  a 
professional  adviser,  informing  the  plaintiff  that  the  defendants 
thereby  declared  the  lease  null  and  void,  and  that  they  thereby 
rescinded  and  repudiated  it,  claiming  that  he  had  broken  the 
lease,  and  failed  to  fulfill  it  by  keeping  possession  of,  and  with- 
holding from  them,  a  portion  of  the  premises,  to  wit :  the  one- 
etory  frame  building  on  Thirty-first  street,  and  notifying  him 
of  their  intention  to  remove  from  the  premises  immediately, 
and  tendering  him  the  possession  of  them ;  which  the  plaintiff 
answered  by  a  letter  on  the  following  day,  expressing  his  sur- 
prise that  they  should  conceive  themselves  to  be  exonerated 
from  their  liability,  and  suggesting  in  respect  to  his  being 
in  possession  of  the  frame  building,  that  that  circumstance  was 
sought  as  an  excuse  for  their  desire  to  get  rid  of  their  contract. 
The  defendants  commenced  removing  on  the  2d  of  August,  and 
by  the  20th  they  had  everything  removed  except  their  lumber 
on  the  sidewalk  and  street,  when  they  sent  the  key  to  the 


NEW  YOKK— JANUARY,  1863.  313 

Vanderpool  v.  Smith. 

plaintiff,  together  with  a  letter  advising  him  that  they  had 
removed  everything,  that  he  could  resume  possession,  and  that 
they  would  pay  no  rent  after  the  1st  of  August,  1861,  as  he  had 
broken  the  lease  on  his  part,  and  ousted  and  withheld  from 
them  a  portion  of  the  premises.  The  plaintiff  sent  the  key  back. 
He  admitted  that  he  had  retained  possession  of  the  one-story 
frame  building  until  the  7th  of  August,  as  they  had  not  required 
it  of  him,  and  he  on  that  day  sent  them  the  key  of  the  building, 
which  they  declined  to  receive. 

It  no  doubt  occurred  to  the  Court  below,  as  it  occurs  to 
us,  that  the  plaintiff  by  continuing  his  goods  in  the  frame 
building  beyond  the  1st  of  August,  had  no  intention  in  fact  of 
withholding  or  depriving  the  defendants  of  the  possession  of  it ; 
but  that  he  did  so  upon  the  assumption  that  they  were  not  yet 
in  want  of  it,  and  that  on  their  part  they  meant  and  designed 
that  he  should  remain  in  possession  of  it  beyond  that  day, 
that  they  might  seize  upon  that  circumstance  as  a  means 
of  getting  rid  of  their  long  lease. 

If  the  evidence  warrants,  as  we  think  it  does,  this  conclusion, 
then  it  is  not  a  case  of  eviction.  As  soon  as  the  first  of  August 
was  passed,  on  the  very  next  day,  they  gave  their  formal  notice 
that  he  had  ousted  and  withheld  from  them  a  portion  of  the 
premises,  and  broken  the  lease  on  his  part,  and  on  that  very  day 
they  commenced  removing,  showing  that  they  must  at  that 
time  have  provided  themselves  with  other  premises,  a  task,  the 
removal  of  an  entire  lumber  yard,  which  they  were  not  liable 
to  complete  until  nearly  a  month  afterwards.  It  was,  in  fact,  an 
attempt  on  their  part  to  get  up  an  eviction  without  any  wrong- 
ful intent  on  the  part  of  the  plaintiff  to  retain  against  their 
will  the  building,  to  the  use  of  which  they  became  entitled  on 
the  1st  of  August.  In  Edgerton  v.  Page  (1  Hilt.,  320),  and  in 
Vermilyea,  v.  Austin  (2  E.  D.  Smith,  204,)  I  have  examined 
very  fully  the  question  of  what  will  constitute  an  eviction,  and 
it  is  sufficient  to  refer  to  the  cases  and  authorities  there 
collected  to  show  that  there  was  not  in  this  case  on  the  part  of 
the  landlord  that  intentional  and  wrongful  taking  of  a 
part  of  the  premises  which  justifies  the  tenant  in  abandon- 
ing the  whole,  or  if  he  continue  in  possession  of  the  portion 
which  is  left,  suspends  the  payment  of  any  rent  until  he  is 
restored  to  the  entire  possession. 


314  COURT  OF  COMMON  PLEAS. 

• 

Martin  v.  Blydenburgh. 

This  right  of  the  tenant  to  have  rent  suspended,  or,  if  he  so 
elect,  to  abandon  the  premises  where  he  has  been  intentionally 
and  wrongfully  dispossessed  of  part  by  the  landlord's  act,  is 
founded  upon  the  reason,  says  Bacon  (6  Abr.  M.  2)  "  that 
no  man  may  be  encouraged  to  injure  or  disturb  his  tenant  in 
possession,  whom  by  the  policy  of  feudal  law  he  is  bound  to 
protect  and  defend."  There  was  no  disturbance  of  possession 
here,  for  the  defendants  had  never  been  in  possession  of  the 
frame  building,  and  unless  the  holding  over  was  with  the  intent 
of  keeping  the  defendants  out  of  the  possession  after  they 
became  entitled  to  it,  there  could  be  no  pretence  of  an  eviction. 
We  must  infer  that  the  Judge  who  tried  the  cause  was  of  the 
opinion  that  no  such  intent  existed,  and  we  think  that  he  was 
warranted  in  eo  finding  upon  the  evidence. 

The  judgment  should  be  affirmed. 


JOHN  MARTIN  v.  HAMILTON  BLYDENBUKGH,  President  of  the 


Bank. 

i 

The  owner  of  a  bank  bill  accidentally  tore  it  into  two  nearly  equal  parts,  one  of 
which,  containing  no  words  giving  it  a  negotiable  character,  was  lost.  The 
bank,  on  demand  being  made  upon  it  for  the  amount  of  the  mutilated  bill,  re- 
fused payment  until  indemnified  by  the  owner  against  the  loss  which  would 
ensue  to  it  from  the  refusal  of  the  Bank  Department  to  issue  a  new  bill,  or 
to  re-transfer  so  much  of  its  security  pledged  for  the  redemption  of  its  circula- 
tion. 

Held,  that  the  bank  was  liable  for  the  amount  of  the  note. 

1.  The  embarrassment  to  the  bank  in  enabling  it  to  procure  another  bill,  of  re- 
transfer  of  an  equal  amount  of  its  securities,  does  not  furnish  any  defence  to 
such  an  action. 

2.  This  was  not  a  case  of  a  lost  note,  and  the  provisions  of  2  Revised  Statutes,  406, 
§§  75,  76,  requiring  a  bond  of  indemnity  to  be  given  by  a  party  seeking  to  re- 
cover on  lost  notes,  etc.,    have  no  application. 

3.  This  was  clearly  such  a  mutilated  note  as  is  contemplated  by  the  act  of  1840, 
ch.  363,  §  5,  which  it  would  be  the  duty  of  the  Superintendent  of  the  Bank  De- 
partment to  receive  and  deliver  in  lieu  thereof  to  the  bank  another  note  of 
the  same  amount. 


NEW    YORK-^TULY,   1863.  315 

Martin  v.  Blydenburgh. 

APPEAL  by  the  defendant  from  a  judgment  entered  on  the 
report  of  a  referee. 

The  action  was  brought  against  the  defendant  as  President 
of  the  Nassau  Bank  of  the  City  of  New  York,  upon  a  bill  of 
said  Bank  for  one  hundred  dollars,  which  was  duly  registered 
in  the  Bank  Department  by  the  number  265,  and  signed  by 
the  President  and  Cashier.  Late  at  night  on  the  day  of  receiv- 
ing the  bill,  the  plaintiff  accidentally  tore  the  bill  in  two  nearly 
equal  parts,  and  lost  one  of  them,  which  contained  upon  it  the 
name  of  the  Cashier  and  Register  in  the  Bank  Department. 
The  portion  retained  by  the  plaintiff  had  upon  it  the  following 
words  and  figures : 

NASSAU  BANK.  o. 

January  3, 1860. 
On  demand, 

dollars,  to  E.  JB.,  or  bearer. 
No  265. 
Cask.  H.  BLTDENBUEGH,  Prest. 

The  grounds  of  the  defence  will  appear  in  the  opinion  of  the 
referee. 

HAMILTON  W.  ROBINSON,  Referee.  The  defendants  are  a 
banking  association,  incorporated  under  the  general  banking 
law,  and,  by  their  articles  of  association,  their  charter  is  to 
continue  until  the  1st  of  November,  1952. 

The  plaintiff  has  presented  the  portion  of  the  bill  which  he 
retained,  and  demanded  payment  of  the  amount,  but  has  been 
refused. 

He  h«os  also  applied  to  the  Superintendent  of  the  Bank  De- 
partment, to  issue,  in  lieu  thereof,  another  registered  note  to 
the  same  amount,  having  the  assurance  of  the  defendant  that 
he  would  execute  a  new  bill,  or  pay  him  the  amount,  if  the 
Superintendent  of  the  Bank  Department  would  issue  one  in  its 
stead ;  but  this  application  having  been  refused,  the  plaintiff 
has  pursued  the  only  course  left  him  for  the  recovery  of  the 
amount  of  the  bill,  by  commencing  this  action. 

Were  this  an  action  against  the  maker  of  an  ordinary  prom- 
issory note,  which  had  been  similarly  torn  into  two  parts,  one 
of  which  had  been  lost,  there  could  be  little  question  as  to  the 
right  of  the  plaintiff  to  recover  the  amount  of  the  face  of  the 


316  COURT  OF  COMMON  PLEAS. 

Martin  v.  Blydenburgh. 

bill,  the  same  as  if  it  were  actually  destroyed.  The  note  or 
bill,  by  this  accident,  ceased  to  present,  in  either  part,  the 
essential  features  of  a  promissory  note,  and  neither  portion  con- 
tained any  such  terms  as  imported  an  obligation  to  pay  any 
sum  of  money  whatever.  The  part  which  was  lost  possessed 
no  negotiable  character,  nor  could  its  possession,  by  any  other 
person  than  the  plaintiff,  confer  any  right  to  any  portion  of  the 
money  which  was  payable  by  the  terms  of  the  original  bill. 
(Ed.  on  Prom.  Notes,  307,  cases  cited,  note  2.)  The  character 
of  the  bill,  as  a  negotiable  promissory  note,  was  destroyed,  and 
the  right  to  any  recovery  exists  in  the  fact  of  its  ownership,  at 
the  time  when  it  lost  that  character. 

This  is  not  the  case  of  a  lost  note,  since  there  is  nothing  lost 
which  constitutes  a  note  or  obligation,  or  which  would  lay  the 
foundation  for  any  recovery  by  any  other  person  against  the 
makers.  The  provisions  of  the  Revised  Statutes,  (2  R.  8.  406, 
§§  75,  76,)  requiring  a  bond  of  indemnity  to  be  given  by  the 
party  seeking  to  recover  on  lost  notes  and  bills  of  exchange, 
have  no  application,  nor  does  any  such  reason  exist  in  the  case 
of  a  mutilated  note,  for  requiring  indemnity  against  claims 
upon  it  by  other  persons,  as  prevailed  in  relation  to  a  lost  note. 
(Story  on  Bills,  §  44  ;  Story  on  Prom.  Notes,  §  445.) 

The  objections  urged  by  the  defendant  against  a  recovery  are 
not  predicated  upon  any  apprehended  claim  of  any  bona  fide 
holder  of  the  lost  portion  of  this  bill,  but  from  the  inconvenience 
and  injury  which  it  is  contended  he  will  suffer  in  consequence 
of  the  refusal  of  the  Superintendent  of  the  Bank  Department 
to  issue  a  new  bill,  instead  of  the  mutilated  portion  of  the 
original  bill,  of  which  the  plaintiff  still  has  possession  ;  and 
they  claim  that  before  the  plaintiff  should  be  permitted  to  re- 
cover, they  are  entitled  to  complete  indemnity  against  the  loss, 
which  would  ensue  to  them,  from  their  inability  to  obtain 
another  bill,  or  a  re-transfer  from  the  Bank  Department  of  so 
much  of  the  stocks  or  mortgages,  which,  under  the  provisions 
of  the  banking  law,  were  lodged  by  them  for  the  protection  of 
their  circulation,  as  stood  security  for,  or  could  be  redeemed 
by,  the  bill  in  question. 

No  such  difficulty  could  exist  were  these  securities  held  by 
a  private  individual,  as  relief  could  be  afforded  by  the  Courts 
to  the  debtor  for  the  restoration  of  his  pledge,  when  the  object 


NEW  YOKK— JULY,  1863.  317 

Martin  v.  Blydenburgh. 

of  the  hypothecation  had  been  accomplished  ;  but  the  embar- 
rassment suggested  is  supposed  to  arise  from  the  omission  of 
any  provision  in  the  general  banking  law  to  either  compel  the 
issuing  of  another  bank  bill,  instead  of  the  one  so  injured,  or 
to  release  so  much  of  the  securities  of  the  bank,  deposited  with 
the  Bank  Department,  as  stood  as  security  for  the  note,  after  it 
has  been  paid  by  the  bank  which  issued  it ;  and  the  defendants 
express  apprehension  that  so  much  of  their  securities  must 
necessarily  remain  impounded  until  the  expiration  of  their 
charter,  notwithstanding  the  debt  which  it  was  to  secure  has 
been  satisfied. 

In  my  opinion,  their  apprehensions  of  difficulty,  from  any  of 
these  sources,  do  not  furnish  any  defence  against  the  note  or 
bill  in  question. 

first — This  is  clearly  such  a  mutilated  note  as  is  contem- 
plated by  the  act  of  1840,  chap.  363,  §  5,  which  it  would  be  the 
duty  of  the  Superintendent  of  the  Bank  Department  to  receive, 
and  deliver,  in  lieu  thereof,  to  the  defendants,  when  they  pre- 
sented it,  another  circulating  note  to  the  same  amount. 

To  "  mutilate"  is  "  to  deprive  of  some  essential  part,"  and, 
as  already  stated,  this  bill,  by  the -absence  of  the  part  that  has 
been  lost,  is  deprived  of  so  essential  a  part  as  to  have  lost  its 
character  as  a  promissory  note,  while  the  lost  part  is  equally 
defective  as  a  bank  bill,  and  inoperative  as  a  pecuniary  obli- 
gation. 

The  statute  has,  under  such  circumstances,  conferred  upon  a 
banking  association,  or  individual  banker,  the  absolute  right 
to  have  another  note  of  the  same  amount  issued  in  lieu  of  the 
mutilated  note.  It  does  not  impose  the  necessity  of  produc- 
ing the  parts  of  the  note  of  which  it  has  been  deprived,  or  of 
establishing  by  proof  the  annihilation  of  such  fragments  as  may 
be  wanting. 

When,  as  a  matter  of  fact,  a  circulating  bank  bill  has  been 
mutilated,  and  the  case  contemplated  by  the  statute  has 
occurred,  the  duty  of  the  Superintendent  is  immediate  and 
imperative,  and  if  he  refuses  or  neglects  performance,  it  may 
be  enforced  by  the  courts. 

Many  cases  might  be  supposed  in  which  a  fraud  might  bo 
perpetrated,  or  mistake  made,  by  which  more  than  one  note 


318  COURT  OF  COMMON  PLEAS. 

__  Martin  v.  Blydenburgh. 

might  possibly  be  issued,  instead  of  that  which  had  been  muti- 
lated ;  but  the  law  assumes  that  the  officer  has  the  skill  and 
the  capacity  so  to  act  as  to  avoid  the  possibility  of  any  such 
occurrence,  and  requires  from  him  the  same  care  and  attention 
in  the  matter  as  in  "the  performance  of  any  other  official 
duty ;  but, 

Second. — Whatever  may  be  the  embarrassment  to  the  defen- 
dants  from  a  defect  in  the  law,  in  enabling  them  to  procure 
another  bill  in  lieu  of  this  mutilated  note,  or  in  being  able  to 
procure  a  re-transfer  of  an  equal  amount  of  the  stocks  or  mort- 
gages lodged  as  security  for  their  circulating  notes,  it  does  not 
furnish,  in  either  view,  any  defence  to  an  action  against  them  to 
enforce  performance  of  their  legal  obligation  to  pay  to  the  law- 
ful holder,  or  to  the  person  whom  the  law  regards  as  occupy- 
ing that  relation,  where  the  note  has  actually  been  deprived  of 
its  character  as  an  entire  perfect  contract. 

The  Legislature,  upon  grounds  of  public  policy,  has  required 
the  deposit,  with  the  Bank  Department,  of  security  for  circu- 
lating notes,  issued  under  the  provisions  of  the  general  banking 
law  ;  and  in  order  to  guard  against  the  issuing  of  any  bills  for 
which  such  security  has  not  been  given,  has  also  provided  for 
the  countersigning  and  registry  of  each  note  before  it  is  deliv- 
ered to  the  bank  or  banker  making  the  deposit,"  for  the  purpose 
of  enabling  them  to  execute  it  and  put  it  in  circulation ;  but  these 
formalities  and  pre-requisites  do  not  enter  into,  or  constitute 
any  part  of  the  contract  with  the  lawful  holder  of  the  bill ;  the 
obligation  to  pay  him  the  amount  is  absolute  and  independent 
of  any  question  connected  with  the  collateral  securities  in  the 
Bank  Department.  The  holder  is  in  no  manner  responsible 
for  any  loss  of  the  securities,  or  embarrassment  in  reclaiming 
them  from  the  possession  of  the  trustee,  to  which  he  has  not 
contributed  ;  and  if  he  has  been  guilty  of  any  misconduct  in 
reference  to  them,  he  must  be  made  responsible  for  it  in  an 
action  in  which  the  ground  of  complaint  and  cause  of  damage 
or  loss  are  distinctly  charged. 

•  From  the  nature  of  the  business  contemplated  by  the  gen- 
eral banking  law,  it  must  have  been  anticipated  that  many  of 
the  circulating  notes  issued  by  a  bank  would,  in  the  ordinary 
occurrence  of  accidents,  become  lost  or  destroyed ;  but  there  is 


NEW  YOKK— JULY,   1863.  319 

Martin  v.  Blydenburgh. 

nothing  in  its  provisions  which  can  be  held  in  any  way  to 
relieve  the  bank  or  banker  that  had  issued  such  notes  from 
the  ordinary  common  law  liability  of  any  other  maker  of  a  lost 
or  destroyed  note. 

No  provision  is  made  for  the  issuing  of  other  notes  in  their 
stead,  nor  for  the  re-transfer,  upon  request, of  securities,  to  an 
equal  amount  for  the  lost  or  destroyed  note,  as  is  allowed  upon 
the  surrender  or  cancellation  of  circulating  notes. 

The  loss  or  destruction  of  notes  ordinarily  implies  negligence 
on  the  part  of  the  loser,  and  the  consequence  ought  to  fall  on 
him  rather  than  upon  the  innocent  party  ;  but  the  contingency 
against  which  the  courts  are  scrupulous  to  protect  the  inno- 
cent party  is  the  possible  claim  of  some  subsequent  fonafide 
holder,  and  the  loss  of  the  evidence  by  which  the  rights  of  the 
loser  of  the  note  may  be  substantiated,  and,  as  to  this,  they 
exact  a  full  indemnity. 

The  Legislature  has,  however,  not  seen  fit  to  visit  upon  the 
holder  or  owner  of  lost  or  destroyed  bank  bills  the  penalty  of 
forfeiture  of  his  debt,  or  to  impose  upon  him  any  other  disabil- 
ity, or  to  exact  from  him  any  other  security,  than  that  which 
was  required  by  the  provisions  of  the  Revised  Statutes.  (2  R.8. 
406,  §§  75,  76.)  Notwithstanding  the  inconvenience  which 
would  attend  the  loss  or  destruction  of  circulating  notes  to  the 
bank  or  banker  who  issued  them,  from  their  inability,  under 
the  existing  provisions  of  the  banking  law,  to  obtain  other 
notes  in  their  stead,  or  a  re-transfer  of  their  securities  to  an 
equal  amount,  prior  to  relinquishing  the  banking  business,  they 
would  still  be  able  to  draw  the  interest  or  dividends  upon  them, 
and  finally  procure  their  surrender,  after  compliance  with  the 
formalities  pointed  out  by  the  statute.  But  all  this  prospec- 
tive inconvenience,  in  recovering  full  control  of  their  collat- 
erals, would  furnish  no  defence  to  an  action  upon  their  lost 
bill,  and  their  claim  would  be  confined  to  such  damages  as  they 
might  show  they  had  sustained  from  this  impounding  of  their 
securities. 

An  action  against  the  holder  or  owner,  for  injury  sustained 
through  his  negligence,  in  losing  or  destroying  the  bill,  would 
in  such  a  case,  be  of  doubtful  success,  especially  as  it  is  to  be 
presumed  that  the  Legislature  would  accord  the  same  justice 
as  would  be  meted  out  by  the  court  as  between  private  persons 


320  COURT  OF  COMMON  PLEAS. 

Martin  v.  Blydenburgh. 

and  would  not  disregard  any  appeal  for  relief  against  injustice 
arising  from  any  omission  in  the  law  by  which  the  Bank  De- 
partment were  suffered  to  retain  the  securities  after  the  object 
of  the  pledge  had  been  satisfied.  But,  on  the  other  hand,  it 
might  well  be  argued,  that  in  the  omission  of  any  allusion  to 
the  contingency  of  the  loss,  or  destruction  of  bank  bills,  or  any 
marshaling  of  the  securities,  so  as  to  make  any  particular  por- 
tion of  them  stand  specifically  for  any  particular  bills,  (except 
in  allowing  a  surrender  of  securities  to  the  amount  of  bills  de- 
livered up  and  cancelled,)  that  the  increase  of  security  from 
this  source,  for  the  benefit  of  the  outstanding  circulating  notes, 
was  intentional. 

Under  these  views,  I  am  of  the  opinion  that  no  defence, 
legal  or  equitable,  is  established,  and  that  the  plaintiff  is  en- 
titled to  recover  the  amount  of  the  one  hundred  dollar  bill, 
with  interest  since  demand  of  payment. 

Judgment  for  the  plaintiff  having  been  entered  upon  the  re- 
port of  the  referee,  the  defendant  appealed  to  the  General  Term. 

Augustus  F.  Smith,  for  appellants. 

I.  No   action  at  law  will  lie  in  this  case,  and  the  case 
of  Hinsdale  v.  Bank  of  Orange,  6  "Wend.,  368,  is  not  an  author- 
ity to  sustain  the  action  since  the  law  of  1840. 

II.  The  Bank  Department  were  right  in  refusing  to  give  a 
new  bill.      This  is  not  a  mutilated  bill  within  section  5.      The 
Department  are  required  "  to  receive  mutilated  circulating 
notes,"  and  issue  others.     A  mutilated  note  does  not  mean  a 
destroyed  note.      A  body  is  not  mutilated  when  its  vital  parts 
are  gone.     A  man  is  mutilated  when  his  leg  or  arm  is  cut  off. 
The  leg  or  arm  cannot  be  said  to  be  mutilated  when  the  body  is 
taken  fr6m  it.     To  mutilate,  is  "  to  cut  off  a  limb  or  essential 
part  of  an  animal  body." — ( Webster.}    This  part  of  the  note 
produced  cannot  be  said  to  be  a  mutilated  note.  It  is  no  longer 
a  note.     Nothing  of  the  vital  principle  remains.     The  Depart- 
ment was  then  not  bound  to  receive  it,  nor  to  issue  another. 

III.  If  the  Department  were  not  bound  to  issue  a  new  note, 
no  bond  could  be  given  which  would  indemnify  the  defendant, 
short  of  one  on  which  he  could  immediately  recover  back  the 
money.    In  effect,  then,  no  action,  even  in  equity,  could  be 
sustained. 


NEW  YOEK— JULY,   1863.  321 


Martin  v.  Blydenburgh. 

5- 


IY.  But  the  referee  required  no  bond  whatever.  If  any 
action  can  be  sustained,  it  can  only  be  upon  fully  indemnifying 
the  Bank. 

Townsend  &  Kane,  for  respondent. 

I.  The  plaintiff  being  the  legal  owner  of  the  whole  bill 
and  the  holder  of  a  part,  the  other  part  having  been  lost  by  him, 
was  entitled  to  recover. 

The  note  or  bill  in  this  condition  ceased  to  present  in  either 
part  the  essential  features  of  a  promissory  note,  and  neither 
portion  contained  any  such  terms  as  imported  an  obligation  to 
pay  any  sum  of  money  whatever.  The  part  which  was  lost 
possessed  no  negotiable  character,  nor  could  its  possession  by 
any  other  person  than  the  plaintiff  confer  any  right  to  any  por- 
tion of  the  money  which  was  payable  by  the  terras  of  the  orig- 
inal bill.  The  character  of  the  bill  as  a  negotiable  promissory 
note  was  destroyed,  and  the  right  to  any  recovery  exists  in  the 
fact  of  its  ownership  at  the  time  when  it  lost  that  char- 
acter. (Edwards  on  Bills,  &c.,  307,  and  cases  there  cited. 
Hinsdale  v.  Bank  of  Orange,  6  Wend.,  378.) 

II.  The   defendant   is   not   entitled  to  any  indemnity  from 
plaintiff.     The  provisions  of  the  Revised  Statutes  do  not  apply 
to  this  case.     This  was  neither  lost  nor  negotiable,  nor  does  any 
such  reason  exist  in  relation  to  severed  or  mutilated  notes  re- 
quiring indemnity  against  claims  upon  them  by  other  persons,, 
as  prevails  in  relation  to  a  lost  note.     The  defendant  refused; 
indemnity,  not,  however,  upon  the  ground  that  the  indemnity 
offered  was  not  sufficient. 

The  plaintiff  cannot  be  made  responsible  for  the  action  of  the- 
Bank  Department  in  unlawfully  refusing  to  issue  a  new  bill, 
and  cannot  be  called  upon  to  indemnity  against  any  such  event. 
Story  on  Bills,  §  44.  Story  on  Prom.  Notes,  §  445. 

III.  The  portion  of  the  bill  upon  which  this  suit  is  brought 
is  a  mutilated  note  within  the  meaning  of  the  5th  Section  of 
Chap.  363  of  the  Laws  of  1840,  and  the  bank  superintendent 
should  have  issued  another  bill  when  requested  to  do  so.     The 
statute  was  intended  for  such  cases  as  the  present. 

The   Bank  Department  did  not,   however,  refuse  to  issue 
another  in  lieu  of  part  produced  upon  the  ground  that  it  was 
not  a  mutilated   bill,  but   upon  the  ground  that  the  plaintiff 
21 


a22  COUET  OF   COMMON  PLEAS. 

* 

Williams  v.  Tradesmen's  Fire  Insurance  Co. 

• 

would  not  (as  he  could  not)  state  that  the  missing  part  was 
"  actually  destroyed" 

BY  THE  COURT. — DALY,  F.  J. — We  have  nothing  to  add 
to  the  reasons  given  by  the  Referee  in  support  of  his  find- 
ing that  the  plaintiff  was  entitled  to  recover,  and  the  report  in 
our  judgment  should  be  affirmed. 

Judgment  affirmed. 


HEBEET  C.  WILLIAMS  v.  THE  TRADESMEN'S  FIRE  INSURANCE 

COMPANY. 

The  Court  may  at  special  term  dismiss  an  appeal  from  the  general  term  of  the 
Marine  Court  for  irregularity.  But  if  the  proceedings  are  regular,  the  ap- 
peal must  be  heard  at  the  General  Term,  even  upon  a  question  of  jurisdic- 
tion. 

The  Court  will  permit  an  amendment  by  which  an  appeal  may  be  perfected, 
where  notice  of  appeal  has  been  served. 

By  section  354  of  the  Code,  the  notice  of  an  appeal  from  the  General  Term  of 
the  Marine  Court,  must  be  served  upon  the  respondent  personally,  and  the 
undertaking  for  costs  must  be  executed  by  the  appellant  himself.  But  where 
it  appears  that  the  appeal  was  taken  in  good  faith,  and  notice  of  the  appeal 
was  served  upon  the  clerk  of  the  court  below,  and  upon  the  attorney  who 
appeared  for  the  respondent  on  the  trial  below, — Held,  that  it  is  within  the 
discretion  of  this  Court  to  allow  the  appellant  to  perfect  his  appeal,  and 
amend  his  proceedings  by  serving  a  notice  of  the  appeal  upon  the  respon- 
dent personally,  and  executing  a  new  undertaking. 

APPEAL  by  plaintiff  from  an  order  made  at  Special  Term  on 
a  motion  made  by  the  plaintiff  to  dismiss  an  appeal  taken  from 
the  General  Term  of  the  Marine  Court. 

The  General  Term  of  the  Marine  Court  had  granted  the 
plaintiff  a  new  trial,  and  the  cause  had  been  set  xlown  for  trial 
for  a  particular  day.  After  this,  and  before  the  trial,  the  de- 
fendant served  upon  the  plaintiff's  attorney  a  notice  of  appeal, 
with  a  copy  of  an  undertaking.  The  undertaking  was  not  exe- 
cuted by  the  defendant.  The  plaintiff  moved  at  Special  Term 
of  this  Court  to  dismiss  the  appeal  on  the  ground  that  there 
had  been  no  actual  determination  of  the  action  by  the  General 
Term  of  the  Marine  Court,  and  that  therefore  an  order  grant- 


NEW  YORK— DECEMBER,  1863.  323 

Williams  v.  Tradesmen's  Fire  Insurance  Co.     . 

ing  a  new  trial  was  not  appealable  ;  also  on  tlie  ground  that 
the  defendants  had  not  executed  the  undertaking  on  their  part 
as  required  by  law ;  and  also  on  the  ground  that  the  notice  of 
appeal  was  not  served  upon  the  plaintiff  personally.  The  Court 
at  Special  Term,  (Hilton,  J.)  made  an  order  that  the  appeal  be 
dismissed,  with  costs,  unless  the  defendants  within  ten  daya 
amend  the  undertaking  given,  and  serve  a  notice  of  appeal  on 
the  plaintiff  as  required  by  law. 

The  following  opinion  was  given  by 

HILTON,  J. — The  respondent  being  a  resident  of  the  county, 
the  notice  of  appeal  should  have  been  served  upon  him  instead 
of  the  attorney  who  appeared  on  his  behalf,  on  the  trial  in  the 
Marine  Court.  (Code,  sec.  354.) 

But  as  it  is  conceded  to  have  been  served  on  the  Clerk 
of  the  Court,  and  also  on  the  attorney,  and  it  appearing  that 
the  appeal  has  been  taken  in  good  faith,  the  defect  is  amend- 
able. (Sec.  327.) 

The  same  remark  applies  to  the  undertaking  for  costs  given 
under  sec.  354,  which  is  required  to  be  executed  by  the  appel- 
lant. 

The  appellant  may  amend  within  ten  days,  and  if  he  does,  the 
costs  of  this  motion  to  respondent  will  abide  the  event  of 
the  appeal. 

If  he  does  not,  the  motion  to  dismiss  the  appeal  will  be 
granted  with  costs. 

As  it  is  claimed  and  not  denied  that  the  Marine  Court 
granted  the  new  trial  on  the  ground  that  the  verdict  of  the 
jury  was  against  evidence,  the  appeal  must  be  heard  at 
General  Term.  (Figaniere  v.  Jackson,  4  E.  D.  Smith  477.) 

The  plaintiff  then  appealed  to  the  General  Term. 

N.  P.  O'Brien^  for  appellant. 

I.  The  notice  of  appeal   not  having  been   served  on  the 
respondent  (Code,  §  354,)  the  appeal  is  not  effectual. 

II.  The  undertaking  required  by  section  354  was  not  given, 
and  the  appeal  on  that  ground  is  also  ineffectual. 

III.  The  defect  is  not  amendable  under  section  327  of  the 
Code,  because  the  notice  of  appeal  was  not  served,  and  also 
because  said  section  does  not  apply  to  appeals  from  the  General 
Term  of  the  Marine  Court  to  the  Court  of  Common  Pleas. 


324  COUET  OF  COMMON  PLEAS. 

.     Williams  v.  Tradesmen's  Fire  Insurance  Co. 

Bradley,  Mills  <&  Woodhull,  for  the  respondent. 

I.  The  defects  in  the  service  of  the  notice  of  appeal  and  in 
the  undertaking  were  curable.     (Code,  §  327.) 

II.  This  Court  at  Special  Term  has  no  power  to  dismiss  an 
appeal  on  the  ground  that  the  order  or  judgment  appealed  from 
is  not  appealable.     This  power  can  be  exercised  by  the  General 
Term  only.     (Bradley  v.  Van  Zandt,  3  Code  Kep.,  217.)     An 
appeal  from  the  Marine  Court  is  to  this  Court,  and  must  be  heard 
at  a  General  Term.     (Code,  §§  352  and  304.)     The  motion  to 
dismiss  this  appeal  brings  up  the  vital  question  in  the  case, 
namely,  whether  the  appeal  can  be  taken  at  all.     If  a  single 
Judge,  at  Special  Term,  can  decide  this  vital  question,  then  he 
can  perform  the  duties  of  a  General  Term  by  forever  prevent- 
ing the  same  being  heard  there. 

III.  The  Marine  Court  in  granting  a  new  trial  on  the  sole 
and  only  ground  that  the  verdict  was  contrary  to  evidence,  ex- 
ceeded their  powers.     (Figmiere  v.  Jackson,  4  E.  D.  Smith, 
477.)    The  proper  remedy  for  the  defendants,  the  party  seeking 
to  sustain  the  verdict,  was  by  appeal  to  this  Court.     The  only 
way  of  reviewing  the  action  of  the  Marine  Court  is  by  appeal 
to  this  Court.     (Code,  §  351.) 

IV.  The  order  of  the  General  Term  of  the  Marine  Court  re- 
versing the  judgment  and  ordering  a  new  trial  was  "  an  actual 
determination"  of  that  General  Term  within  the  meaning  of 
§  352  of  the  Code.     (Bayner  v.  Clark,. 7  Barb.,  581,  582.)    A 
judgment  at  General  Term  rendered  by  consent  is  therefore 
not  an  actual  determination.     (Gridley  v.  Daggett,  6  How.  280.) 
iS'or  is  a   judgment  at  General  Term   entered  by  default  an 
actual  determination.      (Dorr  v.  Birge,  8  Barb.,  351.)      Here 
was  an  actual  determination  by  the  Marine  Court  at  General 
Term.    The  cause  was  argued  at  length  by  counsel  on  both  sides 
and  decided  after  long  deliberation. 

BY  THE  COURT. — BRADY,  J. — The  order  made  at  Special 
Term  in  this  case  must  be  affirmed.  There  is  no  doubt  of  the 
power  of  this  Court  to  permit  an  amendment  by  w.hich  an 
appeal  may  be  perfected  where  a  notice  of  appeal  has  been 
served.  In  this  case  the  notice  was  served,  although  it  was  not 
served  on  the  respondent.  Section  327  does  not  provide  in 
terms  that  the  service  must  be  on  the  party  to  entitle  the 


NEW   YOKE— DECEMBEK,   1863.  325 

Beardsley  v.  Sherman. 

appellant  to  relief,  and  whether  the  omission  to  do  that,  where 
the  notice  has  been  served  upon  the  Clerk  of  the  Court,  and 
the  respondent's  attorney,  should  prevent  us  from  granting  the 
relief  asked,  is  a  matter  of  discretion  to  be  exercised  by  this 
Court.  This  Court  may  at  Special  Term  dismiss  an  appeal  for 
irregularity.  The  proceedings  being  'regular,  however,  the 
appeal  must  be  heard  at  the  General  Term  even  on  a  question 
of  jurisdiction. 

Order  at  Special  Term  affirmed  with  ten  dollars  costs  to  ap- 
pellant, the  defendant  to  abide  the  event  of  the  appeal  from  the 
Marine  Court.* 


MAKGABET  E.  BEARDSLEY  v.  BENJAMIN  SHERMAN. 

In  an  action  by  a  tenant  to  recover  damages  for  the  unlawful  removal  of  fix- 
tures during  his  possession  of  the  premises,  proof  of  a  demand  is  unneces- 
sary. And  a  judgment  rendered  for  the  defendant  in  such  an  action,  on  the 
ground  that  no  demand  for  the  possession  of  the  fixtures  had  been  shown, 
will  be  reversed. 

APPEAL  by  the  plaintiff  from  the  judgment  of  a  District 
Court. 

The  action  was  brought  to  recover  damages  for  wrongfully 
taking  and  detaining  certain  gas  fixtures,  belonging  to  the 
plaintiff,  and  attached  to  the  house  No  315  West  16th  Street, 
New  York  City,  of  which  she  was  the  occupant. 

The  premises  were  sold  by  the  owner  in  January,  1862,  and 
possession  given  to  the  purchaser  about  the  first  day  of  March 
following,  but  it  did  not  appear  clearly  when  possession  was 
surrendered  by  the  plaintiff. 

Judgment  was  rendered  for  the  defendant. 

David  Mo  Adam.,  for  appellant. 
William  B.  Rankin,  for  respondent. 

BY  THE  COURT. — BRADY,  J. — When  the  term  of  the 
plaintiff  expired  does  not  appear,  but  it  seems  from  her 
evidence,  though  on  that  subject  it  is  in  conflict  with  the 

*  Bee  subsequent  appeal  in  the  same  case,  post. 


326  COUKT    OF    COMMON    PLEAS. 

Beardsley  v.  Sherman. 

defendant's  testimony,  she  had  not  yielded  possession 
when  the  fixtures  were  taken  away.  The  Justice,  ignoring  the 
question  presented  on  these  facts,  decided  in  favor  of  the  defen- 
dant, on  the  ground  that  no  demand  had  been  made  of  him 
for  the  fixtures.  This  question  was  not  in  issue  and  was  im- 
material. The  rule  in  reference  to  the  right  of  the  tenant  to 
remove  fixtures,  and  which  necessarily  formed  the  basis  of  the 
investigation  in  this  case,  has  been  stated  to  be  that  things 
annexed  to  the  freehold,  if  movable  at  all,  must  be  moved 
before  the  expiration  of  the  tenancy,  (Poole's  case,  1  Salk.  368 : 
Lyde  v.  Russell,  1  Barn.  &  Aid.,  394  ;  Marshall  v.  Lloyd,  2 
Mees.  &  Wels.,  450  ;  Ex parte  Quincy,  1  Atk.,  477;  Lee  v. 
Risdon,  7  Taunton,  191 ;  Colgrave  v.  Dias  Santos,  2  Barn.  & 
Cress.,  76  ;  Reynolds  v.  Shuler  5  Cow.  323  ;)  and  it  is  founded 
on  the  supposed  abandonment  of  the  fixtures,  when  left  on  the 
premises,  (Lord  Kenyon  in  Penton  v.  Rolart,  2  East,  88 ; 
Amos  &  Ferard  on  Fixtures,  87  ;)  or  that  they  become  a  gift  in 
law  to  him  in  reversion,  and  are  not  removable  (per  Holt  in  1 
Salk.  368,  supra.) 

The  rule,  however,  is  not  as  broadly  stated  in  England  or 
in  this  State.  The  tenant  may  remove  the  fixtures  after  the 
term  has  expired,  and  during  his  possession  (Penton  v.  Robart, 
supra  ;  Weston  v.  Woodcock,  7  Mees.  &  Wels.  14  ;  Dubois  v. 
Kelly,  10  Barb.  496  ;  Holmes  v.  Tremper,  20  Johns.  Rep.,  29,) 
and  if  he  enters  after  the  expiration  of  his  term  to  remove  fix- 
tures owned  by  him,  is  only  a  trespasser  as  to  the  entry  (Lord 
Kenyon  in  Penton  v.  Robart,  supra;  Holmes  v.  Tremper, 
supra.)  It  is  very  clear  from  these  authorities  that  the  deci- 
sion of  the  Justice  was  founded  upon  an  immaterial  issue. 

The  question  on  the  evidence  was  whether  the  defendant  took 
the  fixtures  during  the  possession  by  the  plaintiff.  If  he  did, 
then  he  was  liable  in  damages.  The  right  of  the  plaintiff  to 
remove  during  possession  cannot  well  be  doubted,  and 
the  violation  of  that  right  must  subject  the  wrongdoer 
to  an  action.  If  the  fixtures  had  been  removed  by 
the  defendant  after  the  plaintiff's  abandonment  of  them 
by  yielding  possession,  such  removal  could  not,  on  the 
authorities,  be  regarded  as  a  tortious  taking,  though  the 
detention  might  be  held  to  be  unlawful.  In  the  latter 
case,  a  demand  would  be  necessary,  and  perhaps  a  serious 


ISTEW  YOKK— DECEMBER,  1863.  327 

Western  Transportation  Co.  v.  Hawley. 

question  might  arise*  as  to  the  right  of  the  plaintiff  to 
maintain  an  action  of  trover  to  recover  their  value.  The  Jus- 
tice seems  to  have  regarded  a  demand  necessary  in  any  event, 
for  upon  its  absence  from  the  plaintiff's  evidence  he  found 
against  her.  The  finding  is  the  more  objectionable  for  the 
reason  that  the  defendant  made  no  motion  for  a  dismissal  of 
complaint  on  the  ground  referred  to  or  called  upon  the  plain- 
tiff to  make  the  proof  omitted.  I  think  the  judgment  should 

be  reversed. 

• 
Judgment  reversed. 


THE  WESTERN  TRANSPORTATION   COMPANY  v.   THOMAS  R. 
HAWLEY  and  JOSIAH  HOWE. 

The  fact  that  the  consignee's  business  address  was  stated  in  the  bill  of  lading 
does  not  oblige  the  shipper  to  depart  from  his  known  and  usual  place  of  de- 
livery, and  deliver  the  cargo  at  a  pier  more  contiguous  to  the  consignee's 
place  of  business. 

Very  slight  evidence  that  a  person,  assuming  to  act  as  the  defendant's  agent, 
was  in  fact  his  agent,  should  suffice  to  allow  the  question  to  go  to  the  jury ; 
as  the  defendant  has  it  in  his  power,  now  that  parties  may  be  witnesses  in 
their  own  case,  to  show  at  once  if  the  fact  were  otherwise,  and  that  the  acts 
of  the  agent  were  without  his  knowledge  or  authority. 

The  facts  that  the  defendant,  the  consignee,  was  notified  that  if  the  cargo  was 
discharged  elsewhere  than  at  the  pier  where  the  vessel  lay,  lighterage  would 
be  charged ;  and  that  afterwards  a  written  request  to  send  the  vessel  to 
another  pier  came  in  his  nume,  signed  by  the  person  who  had  acted  as  his 
agent  in  shipping  the  cargo,  who  had  been  seen  in  and  about  his  office,  and 
who  assumed  in  such  request  to  act  as  his  agent,  upon  which  request  the 
cargo  was  so  delivered, — Held,  sufficient  to  warrant  a  finding  on  the  part  of 
the  Jury  that  it  was  by  the  defendants'  request  that  the  vessel  was  moved 
and  the  cargo  was  delivered  at  another  pier. 

Heldfurtfier,  that  the  sending  of  such  a  request  by  the  defendant,  after  notifi- 
cation that  a  charge  in  such  case  would  be  made  for  lighterage,  would  be 
sufficient  to  support  an  implied  a&tumpsit  that  the  defendant  would  pay 
•what  was  customary,  if  any  custom  existed,  or,  if  no  custom  existed,  a  rea- 
sonable compensation. 

Held  further,  that  the  plaintiffs  claim  upon  such  an  implied  agreement  would 
not  be  limited  to  the  amount  actually  paid  out  by  them  for  towing  the  ves- 
sel from  one  pier  to  another,  but  they  would  be  entitled  to  such  an  amount 
of  extra  compensation  as  the  Jury  might  fix. 


328  COCJRT  OF  COMMON  PLEAS. 

Western  Transportation  Co.  v.  Hawley. 

Lighterage  is  the  price  paid  for  unloading  ships'by  lighters  or  boats,  and  a 
charge  for  taking  a  boat  to  another  pier  instead  of  the  usual  one  of  delivery 
would  not  be  embraced  under  that  term. 

Demurrage  is  only  recoverable  where  it  has  been  expressly  stipulated  for 
though  where  there  has  been  an  unreasonable  or  improper  detention  of  the 
vessel  by  the  act  of  the  freighter  or  consignee,  damages  may  be  recovered 
by  the  owner. 

APPEAL  by  the  plaintiff  from  a  judgment  at  Trial  Term, 
dismissing  the  plaintiff 's  con»plaint. 

The  action  was  brought  to  recover  the  sum  of  ninety  dollars 
as  extra  compensation,  in  addition  to  freight  and  charges,for 
delivering  a  cargo  at  a  pier  other  than  the  one  at  which  the 
plaintiffs  usually  delivered. 

It  appeared  on  the  trial  that  the  boat  upon  which  the  pro- 
perty in  question  had  been  brought  to  the  City  of  New  York, 
belonging  to  and  in  the  employ  of  the  plaintiff,  having  arrived 
at  its  place  of  destination,  was  moored  at  the  usual  landing 
place  of  the  plaintiff.  Notice  of  the  arrival,  and  of  the  plain- 
tiff's readiness  to  deliver,  was  immediately  given  to  the  defen- 
dants, the  owners  and  consignees  of  the  property,  together 
with  the  further  notice  that  the  property  would  be  subject  to 
lighterage,  in  addition  to  the  freight  and  charges,  if  taken  out 
elsewhere  than  in  the  slip  specified;  which  was  the  usual  land- 
ing place  of  the  plaintiff. 

Upon  this  notice  being  served  on  the  defendants,  the  plain- 
tiff was  requested  by  a  note  in  writing,  signed  in  the  defen- 
dant's name  "  per  F.  S.  Hall"  to  move  the  boat  from  Pier  7  to 
Pier  3,  to  deliver  cargo,  etc. 

Under  this  order  and  request  the  boat  was  moved  to  tho 
place  designated  by  the  defendants,  and  the  cargo  in  question 
was  there  delivered.  The  usual  and  customary  charge  for  light- 
erage under  such  circumstances  was  fifty-four  dollars,  the  charge 
including  compensation  for  the  continued  responsibility  of  the 
carrier  after  the  boat  had  arrived  at  a  place  of  safety,  and  the 
use  of  the  boat  in  the  meantime. 

The  plaintiff  having  rested  its  case,  the  defendants'  counsel 
moved  the  Court  to  non-suit  the  plaintiff  and  to  dismiss  the 
complaint,  upon  the  ground  that  the  proof  on  the  part  of  the 
plaintiff  did  not  tend  to  establish  a  cause  of  action  against  the 


NEW  YOKK— DECEMBEE,  1863.  329 

Western  Transportation  Co.  v.  Hawley. 

defendants  ;  upon  the  ground  that  the  customs  attempted  to  be 
shown  were  not  sufficiently  proved  so  as  to  be  binding  upon  the 
defendants,  and  did  not  tend  to  establish  a  cause  of  action  ;  and 
upon  the  further  ground  that  demurrage  was  not  chargeable 
against  the  defendants,  unless  stipulated  for  in  the  bill  of  lad- 
ing; and  upon  the  further  ground  that  it  was  not  suffici- 
ently proven  that  the  vessel  was  delayed  in  discharging  her 
cargo  by  any  conduct  of  the  defendants  or  their  servants ; 
and  upon  the  further  ground  that  it  was  not  sufficiently 
proven  that  the  request  to  tow  the  vessel  from  Pier  7  to  Pier 
3  was  giren  by  authority  of  the  defendants. 

The  Court  granted  the  motion  upon  each  of  said  grounds, 
and  the  plaintiff  insisted  upon  its  right  to  go  to  the  jury  upon 
the  questions  of  facts,  and  resisted  the  motion  of  the  defen- 
dants' counsel ;  but  the  Court  refused  to  allow  the  case  to  go 
to  the  jury,  and  ordered  the  complaint  to  be  dismissed. 

John  Hulbelly  for  appellants. 

1.  The  plaintiff  having  carried  the  property  to  the  place  of  des- 
tination and  given  notice  of  its  readiness  to  deliver  the  same 
at  its  usual  and  customary  place  of  delivery,  its  contract  was 
fully  performed.  It  was  not  bound  to  take  them  to  the  wharf 
or  place  which  was  near  and  most  convenient  to  the  consignee, 
or  that  which  he  specially  directed,  unless  it  had  previously 
agreed  to  do  so.  (1  Parsons  on  Contract,  667 ;  Chickering  v. 
Fowler,  4  Pick.,  371;  Angel  on  Carriers,  282.) 

II.  The  plaintiff  was  also  entitled  to  recover  for  the  demurrage 
claimed.  The  boat  in  question  arrived  in  New  York  on  the  19th 
of  April ;  two  days  afterwards  (on  the  21st,)  the  plaintiff  gave 
notice  to  the  defendants  that  it  was  intended  to  charge  five  dol- 
lars a  day  demurrage,  from  and  including  the  22d,  until  dis- 
charged ;  three  days  being  a  reasonable  time  for  its  discharge. 
The  defendants  acquiesced  in  the  notice,  and   detained  the 
boat  for  seven  days  after  the  expiration  of  the  time  specified. 

III.  The  doctrine  that  demurrage  must  be  specified  in   the 
bill  of  lading    does  not  apply  in  this  case.     The  mas'er,  it  is 
concede!,  cannot  collect  demurrage,  unless  it  is   specified  in 
the  bill  of  lading,  for  the  reason,  that  the  bill  of  lading  is  his 


330  COUKT  OF  COMMON  PLEAS. 

Western  Transportation  Co.  v.  Hawley. 

only  authority  to  collect  anything,  even  the  freight.  But  there 
is  no  such  rule  as  affecting  the  owner  of  the  vessel.  He  may 
recover  for  the  improper  detention  of  his  vessel  as  against  the 
consignee,  without  reference  to  the  bill  of  lading. 

D.  McMahon,  for  the  respondents. 

I.  In  an  action  like  the  present,  i.  e.,  founded  on  the  breach 
of  a  contract  to  pay  a  reasonable  compensation  for  delaying  a 
vessel,  demurrage  is  not  chargeable  against  defendants,  unless 
stipulated  for  in  the  bill  of  lading.     (Roberston  v.  JBethune*  3 
Johns.,  342.    (1.)   Whatever  might  be  the  consequence  of  an 
action  brought  to  recover  damages  for  an  unreasonable  deten- 
tion, yet  such  is  not  the  present  case.     On  the  contract  counted 
on,  the  appellants,  we  submit,  cannot  recover,  unless  a  contract 
to  pay  demurrage  and  a  breach  of  such  contract  are  shown.    (2.) 
The  bill  of  lading  introduced   by  appellant,  and  which  is  the 
proper  evidence  of  the  contract,  shows  nothing  of  the  kind ; 
it  contains  no  stipulation  to  pay  demurrage,  nor  does  the  plain- 
tiff show  that  the  defendants  ever  promised  to*  pay  the  same. 
(3.)  The  mere  request  to  move  the  barge  from  pier  7  to  pier 
3  on  her  arrival,  and  before  bulk  was  broken,  even  if  con-, 
ceded  to  have  been  made  by  a  person  having  authority  from 
the  defendants,  does  not  imply  any  promise  on  the  part  of  the 
defendants  to  pay  demurrage. 

II.  Such  an  alleged  custom  to  pay  demurrage  and  lighter- 
age, as  was  attempted  to  be  proved  in  this  case,  would  not  be 
binding  on  the  defendants  unless  they  had  ratified  it,  or  a  prior 
course  of  dealing  with  the  plaintiff  had  existed,  from  which  a 
ratification  might  be  inferred.    The  evidence  excluded  any 
such.  idea. 

III.  The  plaintiff  counted  on  a  contract  with  the  defendants, 
that  the  latter  should  pay  the  extra  expense  occasioned  by 
such  removal.     No  such  contract  was  proven  here.     The  mere 
request  to  move,  made  by  Mr.   Hall,   did    not  prove    any 
contract  by  the  defendants ;  Mr.  Hall  was  not  shown  to  be 
the  agent  of  the   defendants,  and  the  bill  of  lading  itself 
provided  for  the  delivery  to,  Hawley   &  Howe,   102  Broad 
Street,  N.  Y.,  which  is  opposite  to  pier  3,  and  not  near  pier  7. 


NEW  YORK— DECEMBER,  1863.  331 

Western  Transportation  Co.  v.  Hawley. 

BY  THE  COUBT. — DALY,  F.  J. — The  averment  in  the  complaint 
was  that  the  plaintiffs  were  ready  and  offered  to  deliver  the 
property  at  the  usual  and  ordinary  place  of  delivery,  but  that 
the  defendants  requested  them  to  deliver  it  at  a  different  place, 
agreeing  to  pay  them  for  delivering  it  at  that  place  a  reason- 
able compensation,  together  with  the  costs  and  charges  incur- 
red by  so  doing. 

They  proved  that  their  usual  place  of  delivery  was  Pier  No. 
7,  East  River ;  that  immediately  upon  the  arrival  of  the  boat, 
they  gave  notice  of  their  readiness  to  deliver  at  that  place, 
advising  the  defendants  that  the  property  would  be  at  the  risk 
of  the  owner  or  consignee,  when  landed  on  the  wharf,  and  that 
it  would  be  subject  to  lighterage,  in  addition  to  freight  and 
charges,  if  taken  out  elsewhere  than  in  the  slip.  After  the  de- 
livery of  this  notice  to  the  defendants,  the  plaintiffs  received  a 
written  request  to  send  the  boat  to  Pier  No.  3,  East  River,  to 
deliver  the  cargo,  Pier  No.  3  being  at  the  foot  of  Broad  street, 
and  the  defendants'  place  of  business  being  at  No.  102  Broad 
street.  To  this  written  request  the  name  of  the  defendants' 
firm  was  signed  as  follows  :  Hawley  &  Howe,  per  F.  S.  Hall ; 
F.  S.  Hall,  according  to  the  bill  of  lading,  having,  as  agent, 
shipped  the  cargo  from  Tonawanda  by  the  plaintiffs'  boat  to 
the  defendants'  address.  The  plaintiffs  accordingly  sent  their 
boat  to  pier  No.  3,  where  the  cargo  was  delivered  to  the 
defendants. 

The  plaintiffs  are  a  corporation  engaged  in  the  transportation 
of  merchandise  between  the  cities  of  Buffalo  and  New  York, 
by  the  way  of  the  Erie  Canal  and  the  Hudson  River.  They 
proved  that  their  usual  place  for  the  delivery  of  cargoes  by 
canal  boats  was  pier  No.  7  East  River,  and  the  fact  that  the 
defendants'  address,  102  Broad  street,  was  stated^  in  the  bill 
of  lading,  did  not  oblige  the  plaintiffs  to  depart  from  their  usual 
place  of  delivery,  and  deliver  this  particular  cargo  at  a  pier 
more  contiguous  to  the  defendants'  place  of  business.  Having 
notified  the  defendants  of  the  arrival  of  the  boat,  and  of  their 
readiness  to  deliver  at  Pier  No.  7,  they  did  all,  in  my  judgment, 
that  they  were  required  to  do  under  the  contract.  (Rowland 
v.  Miln,  2  Hilt.  150 ;  Ostrander  v.  Brown,  15  Johns.  39 ;  Gib- 
son v.  Culver,  17  Wend.  305. 


332  COURT  OF  COMMON  PLEAS. 

,       Western  Transportation  Co.  v.  Hawley. 

The  facts  that  the  defendants  were  notified  that  if  the  property 
were  taken  out  elsewhere  than  at  Pier  No.  7,  lighterage  would 
be  charged,  and  that  afterwards  a  written  request  to  send  the 
boat  to  Pier  No.  3  came  in  their  name,  signed  by  the  person 
who  acted  as  agent  in  shipping  the  property  to  them  at  Tona- 
wanda,  who  had  been  seen  in  and  about  their  office,  and  who 
assumed  in  that  letter  to  act  as  their  agent,  and  that  the  pro- 
perty was  delivered  to  them  at  Pier  No.  3,  were  sufficient^  in 
my  judgment,  to  warrant  a  finding  on  the  part  of  the  Jury  that 
it  was  by  the  defendants'  request  that  the  boat  was  sent  to 
Pier  No.  3.  Yery  slight  evidence  under  such  circumstances 
should  suffice ;  the  defendants,  now  that  parties  may  be  wit- 
nesses in  their  own  case,  having  it  in  their  power  to  show  at 
once  if  the  fact  were  otherwise,  that  the.  order  sent  in  their 
name  was  without  their  knowledge  or  authority.  And  the  send- 
ing of  such  a  request  after  they  had  been  notified  that  a  charge 
in  such  a  case  would  be  made  for  lighterage  would  be  sufficient 
to  support  an  implied  assumpsit  that  they  would  pay  what 
was  customary,  if  any  custom  existed,  or  if  not,  a  reasonable 
compensation. 

I  do  not  think  that  the  evidence  showed  that  the  tariff  of 
charges  for  lighterage  agreed  upon  by  the  transportation  com 
panies  had  been  so  generally  acquiesced  in  as  to  become  estab 
lished  as  a  custom,  or  that  any  custom  existed  as  to  the  right 
to  demand  lighterage  in  such  cases.  Indeed,  I  do  not  under- 
stand how  the  term  can  be  considered  applicable  to  such  a  case, 
the  ordinary  signification  of  lighterage  being  the  price  paid 
for  unloading  ships  by  lighters  or  boats.  Here  there  was  noth- 
ing of  the  kind,  but  simply  the  unloading  of  a  canal  boat  at 
one  wharf  or  pier  instead  of  another.  The  term  as  used  in  the 
plaintiffs'  printed  notice  undoubtedly  meant  additional  compen- 
sation beyond  the  freight  and  ordinary  charges,  and  this  the 
defendants,  in  my  opinion,  were  obliged  to  pay,  not  in  conse- 
quence of  an  established  custom,  but  from  an  implied  under- 
standing that  they  would  pay  what  was  fair  and  reasonable, 
and  what  would  be  a  reasonable  compensation  could  be 
determined  by  the  jury  upon  the  evidence. 

No  right  to  exact  demurrage  was  shown.     Demurrage  is 
recoverable  only  where  it  has  been  expressly  stipulated  for, 


NEW  YOEK— DECEMBER,  1863.  333 

"Western  Transportation  Co.-v.  Hawley. 

though,  where  there  has  been  an  unreasonable  or  improper 
detention  of  the  vessel  by  the  act  of  the  freighter  or  consignee, 
damages  may  be  recovered  by  the  owner*  (Evans  v.  Foster, 
1  Barn,  and  Ad.  118 ;  Robertson  v.  BetJiune^  3  Johns.  342 ; 
Clendaniel  v.  Tuckerman,  17  Barb.  191.)  There  was  110  proof 
here  as  to  the  time  when  the  boat  was  sent  to  Pier  No.  3.  It 
appeared  simply  that  she  arrived  on  the  19th  of  April;  that 
the  request  to  deliver  at  Pier  No.  3  was  sent  upon  that  day, 
and  that  the  cargo  was  not  discharged  until  the  29th  of  April. 
Ten  days  elapsed  from  the  day  of  her  arrival  until  the  day  of 
her  final  discharge.  But  whether  the  delay  was  caused  by 
the  defendants  or  not,  assuming  it  to  have  been  an  unreasona- 
ble length  of  time,  does  not  appear.  The  only  evidence  was 
the  service  upon  the  defendants  of  a  notice  that  they  would  be 
charged  $5  a  day  demurrage  after  the  21st  of  April  (the  day 
of  the  notice,)  until  the  discharge. 

It  was  shown  that  the  actual  expense  for  towing  the  boat 
from  Pier  No.  7  to  No.  3  would  be  $3  ;  but  the  plaintiffs'  claim 
upon  the  implied  agreement  for  extra  compensation  would  not 
be  limited  to  the  amount  actually  paid  out  by  them  'for  towing 
the  vessel  from  one  pier  to  another.  It  was  in  evidence  that 
it  was  necessary  in  the  transportation  business  for  the  various 
companies  generally  to  have  some  place  for  receiving  property 
brought  by  them  to  the  city  by  canal.  It  was  shown  that  the 
plaintiffs  had  a  pier  for  that  purpose,  and  it  is  inferable  from 
that  fact  that  it  was  more  convenient  for  them  and  facilitated 
their  business  to  deliver  their  cargoes  there  rather  than  else- 
where. The  transportation  companies  had  agreed  among 
themselves  as  to  a  tariff  of  prices  which  had  no  reference  what- 
ever to  the  distance  to  which  the  vessel  might  be  moved  about 
the  city,  but  was  demanded  if  the  property  was  taken  out  else- 
where than  in  the  slip  where  cargoes  were  ordinarily  deliv- 
ered. This  was  the  express  stipulation  in  the  printed  notice 
served  by  the  plaintiffs  before  they  received  the  order  to  send 
the  boat  to  pier  No.  3,  and  under  this  agreement,  they  were 
entitled,  ''in  addition  to  freight  and  charges,"  to  an  extra 
compensation,  the  amount  of  which,  under  the  circumstances, 
could  be  fixed  only  by  the  jury. 


334  COURT  OF  COMMON  PLEAS. 

Eckstein  v.  Frank. 

A  new  trial,  therefore,  should  be  granted. 
BRADY,  J. — I  concur. 

HILTON,  J.  (dissenting.) — I  agree  that  the  question  as  to  what 
would  be  a  reasonable  compensation  for  towing  the  barge  from 
Pier  7  to  Pier  3  should  have  been  submitted  to  the  jury,  but 
on  looking  into  the  printed  case  I  find  that,  apart  from  the 
alleged  custom  upon  which  this  action  is  sought  to  be  main- 
tained, but  which  was  not  established,  the  only  proof  upon  the 
question  of  compensation  was,  that  it  would  cost  three  dollars 
to  remove  the  barge  from  one  pier  to  the  other.  It  certainly 
cannot  be  material  to  order  a  new  trial  for  so  small  a  sum,  and 
I  think  in  this  case  we  should  apply  the  maxim  "  De  minimits 
non  curat  lex"  and  affirm  the  judgment. 

Judgment  reversed,  and  a  new  trial  ordered. 


HENRY  ECKSTEIN  v.  HERMAN  FRANK,  Jy  JOSEPH  FRANK,  his 
•  guardian,  &c. 

A  minor  who  obtains  property  upon  representations  that  he  is  of  full  age,  is 
liable  in  an  action  of  tort,  either  to  recover  the  property  back,  or  to  recover 
damages  upon  the  ground  that  it  was  wrongfully  obtained. 

APPEAL  by  the  defendant  from  the  judgment  of  a  District 
Court.  The  defendant  demurred  to  the  complaint  on  the 
ground  that  it  did  not  state  facts  sufficient  to  constitute  a 
cause  of  action. 

The  demurrer  was  overruled,  and  judgment  rendered  for  the 
plaintiff  on  the  trial. 

A.  J.  Dittenhoefer,  for  appellant. 

I.  The  representations  of  the  defendant,  set  forth  in  the 
complaint,  to  wit,  "  that  he  was  over  the  age  of  twenty-one 


NEW  YOEK— DECEMBER,  1863.  335 


Eckstein  v.  Frank. 


years,  and  capable  of  contracting  a  legal  liability,"  were  not 
proven  on  the  trial,  and  the  Justice  erred  in  admitting  in  evi- 
dence and  rendering  judgment  on  any  other  representations. 
The  representations,  as  alleged,  must  always,  in  actions  ,pf  this 
nature,  be  strictly  proved. 

II.  The  defendant,  being  an  infant,  was  not  liable  at  all 
(1)  No  action,  as  for  a  deceit;  can  be  maintained  against  an 
infant,  even  when  he  has  attained  his  age,  founded  upon  a 
false  representation  of  his  age.     He  is  not  estopped   from 
pleading  his  infancy  by  any  declarations  as  to  his  age  made  by 
him  at  the  time  of  the  contract.     The  doctrine  of  estoppel  has 
no  application  to  infants,     (ferowft  v.  McCune,  5  Sandf.  R., 
224  ;  The  People  v.  Kendall,  25  Wend.,  399.)     (2.)  In  the  case 
of  Brown  and  McCune,  cited  above,  the  action  was  on  CON- 
TRACT, and  the  plaintiff  moved  to  amend  the  complaint,  so  as 
to  make  it  a  claim  for  damages  by  reason  of  the  false  represent- 
ations  as  to  the  defendant's  age.     The  motion  was  denied.    In 

.a  very  recent  case  in  England  (De  Roo  v.  Foster,  Com.  Pleas) 
it  w.as  held  that  "  a  replication  on  equitable  grounds  to  a  plea 
of  infancy,  that  the  defendant  fraudulently  contracted  the 
debt  by  means  of  a  false  and  fraudulent  representation  that  he 
was  of  full  age,  is  bad  on  the  ground  of  departure,  and  disclos 
ing  no  answer  in  equity." 

III.  The  judgment  is  erroneous  on  the  ground,  that,  as  the 
substantial  cause  of  action  in  this  case  rests  on  promises,  the 
plaintiff  (Jannot,  by  changing  the  form  of  action,  make  the 
defendant,  an  infant,  liable,  who  would  not  have  been  liable  on 
the  promise.     (Green  v.  Greenbank,  2  Marshall,  485 ;  4  Eng. 
Com.  Law  R.,  375  ;  Campbell  v.  Perkins,  8  N.  Y.,  430.) 

BY  THE  COURT. — DALY,  F.  J. — The  doctrine  of  Johnson  v. 
Pie  (1  Lev.,  169 ;  1  Keb.,  905,  913,)  though  recognized  in  a 
comparatively  recent  English  case  (Price  v.  Hewitt,  8  Wels., 
Hurl.  '&  Gor.,  146,)  and  though  believed  to  be  the  law  by 
Justice  Sandford  in  Brown  v.  McCune  (5  Sandf.,  224,)  had  been 
eight  years  before  distinctly  repudiated  by  the  Supreme  Court 
of  this  State,  upon  full  consideration,  in  Wallace  v.  Morse,  (5 
Hill,  392,)  and  it  has  also  been  considered  and  repudiated  in 
a  great  number  of  cases  in  other  States  (Fits  v.  Hall,  9  New 
Hanip.,  441;  Badger  v.  Phinney,  15  Mass.,  359;  Homer  T. 


336  COURT  OF  COMMON  PLEAS. 

Henderson  v.  Slurg'.s. 

Thwing,  3  Pick.,  492 ;    Rice  v.  Clark,  8  Verm.,  109  ]  Green  v. 

Sparry,  16  id.,  393;    Town  v.  Wile  ,  23  id.,  361;  Vosse  v. 

&ntYA,  6  Cranch,  226 ;  ^wrky  v.  7? tt^/,10 New  Hamp    184; 

Kilgrtfoe  v.  Jordan,  17  Texas,  349 ;  Norris  v.  Fawce,  3  Kich., 
164 ;  P«r0m  v.  Sutchli/e,  4  McCord,  387 ;  Jervis  v.  Z^Ze- 
^eW,  15  Maine,  233  Ward  v.  Fom»,  1  Nott  &  McCord,  1,  7.) 
It  is  therefore  to  be  regarded  as  overruled  in  this  country  by 
an  overwhelming  weight  of  authority. 

The  Justice  has  found  that  the  defendant,  before  the  contract 
was  entered  into,  represented  himself  to  be  twenty-two  years 
of  age,  he  then  being  a  mino^r.  When  an  infant  obtains 
property  by  falsely  representing  himself  to  be  of  full  age,  an 
action  of  tort  may  be  maintained  against  him,  either  to  recover 
it  back  or  to  recover  damages,  upon  the  ground  that  he 
obtained  the  possession  of  it  wrongfully.  It  has  long  been  the 
rule  in  courts  of  equity,  that  an  infant  will  be  held  liable 
where  he  obtains  property  by  a  false  representation  respecting 
his  age.  "If  an  infant  is  old  and  cunning  enough,"  says  Lord 
Chancellor  Cowper,  "  to  contrive  and  carry  out  a  fraud,  he 
ought  to  make  satisfaction  for  it."  (2  Eq.  Ca.  Ab.,  515,)  and 
the  good  sense  and  justice  of  requiring  him  to  do  so  has 
been  held  in  the  numerous  cases  cited  to  be  as  applicable  in  a 
court  of  law  as  in  a  court  of  equity. 

The  judgment  should  be  affirmed. 


HENDERSON  &  EEID  v.  STTTRGIS  and  others. 

Where  a  sub-contractor  is  prevented  from  performing  the  whole  of  his  con- 
tract with  the  contractor  by  reason  of  the  failure  of  the  latter,  and  an 
assignment  by  him  of  the  contract  for  the  benefit  of  his  creditors ;  Held, — 
that  he  may  acquire  and  enforce  a  lien  for  the  value  of  his  labor  anil  mate- 
rials performed  and  furnished  up  to  the  time  when  he  was  prevented. 

Although  at  the  time  the  sub-contractor  filed  his  lien  there  was  nothing  due 
to  the  contractor,  yet  the  latter  having  made  an  assignment  with  the  consent 
of  the  owner,  who  detained  from  the  contract  price  the  amount  of  the  lien, 
and  the  sub-contractor  having,  under  an  agreement  with  the  assignee,  com- 
pleted his  work,  as  contemplated  by  the  original  contract,— Held,  that  the 
equities  are  with  the  sub-contractor,  and  a  court  of  equity  will  apply  the 
sum  so  detained  in  satisfaction  of  his  lien. 


NEW    YORK— DECEMBER,   1S6\  337 

Henderson  v.  Sturgis. 

APPEAL  by  the  plaintiffs  from  a  judgment  of  a  District 
Court. 

The  action  was  broug  ht  to  enforce  a  lien  filed  under  the 
Mechanic's  lien  law.  The  facts  are  fully  stated  in  the  opinion 
of  the  Court. 

BY  THE  COURT. — BEADY,  J. — The  plaintiffs,  on  the  18th  of 
June,  1860,  made  an  agreement  with  the  defendants,  "Wester- 
velt  &  Camp,  who  were  the  contractors,  to  perform  certain 
work  towards  the  erection  of  two  houses  belonging  to 
the  defendant  Sturgis.  On  or  about  the  2nd  of  October,  1861, 
"Westervelt  &  Camp  failed  and  made  an  assignment.  On  the 
5th  of  October,  1861,  the  plaintiffs  filed  a  lien  claiming  one 
hundred  dollars  to  be  due,  this  being  a  part  only  of  their  con- 
tract price,  which  was  two  hundred  and  fifty  dollars.  The 
assignee  of  Westervelt  &  Camp,  as  such,  finished  the  buildings 
under  the  original  contract,  but  the  plaintiffs  made  an  agree- 
ment with  him  to  complete  their  work,  which  was  finished  as 
contemplated  by  their  agreement  with  "Westervelt  &  Camp, 
At  the  time  the  lien  was  filed  there  was  nothing  due  to  the 
contractors,  but  the  defendant  Sturgis  consented  to  the  assign- 
ment and  retained  ultimately  the  sum  of  one  hundred  dollars  as 
security  against  the  lien.  Can  the  plaintiffs  recover  on  these 
facts  ?  The  Justice  thought  not,  and  dismissed  their  complaint. 
He  was  in  error.  The  statute  of  1851  provides  for  a  lien  to  be 
gained  by  filing  a  notice,  etc,,  after  the  performance  of  the 
labor  or  the' furnishing  of  the  materials  (per  Woodruff,  J.,  in 
Jacques  v.  Morris,  2  E.  D.  Smith,  643,)  but  the  plaintiffs  were 
prevented  from  performing  their  contract  with  Westervelt  & 
Camp  by  the'  failure  of  the  latter. 

The  contract  between  them  b^'ing  an  entirety,  and  the  work 
not  having  been  done,  no  lien  could  have  been  acquired  on 
the  5th  of  October,  1861,  unless  the  contract  had  ceased  to 
continue  by  some  act  of  the  parties  or  by  operation  of  Jaw. 
The  effect  of  the  failure  of  the  contractors  and  assignment  by 
them  was  to  prevent  the  plaintiffs  from  proceeding  with  their 
work,  and  the  contract  was  at  an  end.  (See  Belsliaw  v.  Colic, 
1  E.  D.  Smith,  213.)  And  in  this  respect  this  case  is  analogous 
to  Dennistoun  v.  McAllister,  (4  E.  D.  Smith,  729,)  in  which  the 
plaintiff  recovered  against  the  owner  the  amount  of  his  claim, 
22 


333  COURT  OF  COMMON  PLEAS. 

Gates  v.  Haley. 

although  it  was  proved  that  he  had  not  performed  his  work, 
such  performance  having  been  prevented  by  the  contractor. 

The  foreclosure  of  a  lien  contemplated  by  the  statute  ib  an 
equitable  proceeding,  in  which  the  powers  of  the  Court 
as  a  Court  of  equity  are  peculiarly  evoked  to  mould 
the  remedy  to  suit  the  circumstance  of  each  case. 
(Doughty  v.  Devlin,  1 E.  D.  Smith,  625  ;  Miller  v.  Moore,  Ibid, 
739.)  In  this  action  the  equities  are  with  the  plaintiffs.  They 
performed  work  to  the  amount  of  one  hundred  dollars,  and 
finished  their  contract  by  agreement  with  the  assignee  of  the. 
contractors,  Westervelt  &  Camp.  The  assignee  succeeded  to 
the  estate  of  the  contractors,  but  took  it  cum  onere,  and  having 
completed  the  work  under  the  original  contract,  and  the  owner 
having  detained  the  amount  of  the  plaintiffs'  claim  from  the 
contract  price  which  he  was  to  pay,  equity  demands  that  it 
should  be  applied  to  the  payment  of  the  plaintiffs'  claim  If 
the  plaintiffs  were  not  rectus  in  curia,  this  would  not  follow, 
and  if  there  was  no  validity  in  the  lien  they  would  not  be. 

For  the  reasons  assigned,  I  think  the  lien  was  valid  when 
filed.  The  objections  to  the  form  of  the  lien  were  not  well 
taken  (Lutz  v.  Ey,  3  E.  D.  Smith,  621.) 

The  judgment  should  be  reversed. 


BERNARD  OATES  v.  MICHAEL  H.  HALEY,  GEORGE  H.  STONE,  and 
OWEN  KENNEY. 

Where,  prior  to  the  filing  of  a  notice  claiming  a  mechanic's  lien  by  a  sub-con- 
tractor, the  contractor  in  good  faith  and  for  a  full  consideration,  transferred 
to  a  purchaser  the  right  which  he  might  thereafter  acquire  to  any  payments 
under  the  contract,  Held— that  the  purchaser  succeeded  to  the  rights  of  the 
contractor  upon  the  contract,  and  that  as  against  such  purchaser,  the  sub- 
contractor, who  knew,  at  the  time  of  the  making  of  his  contract,  of  the 
existence  of  the  assignment,  acquired  no  lien. 

The  only  exception  to  the  rule  that  the  sub-contractor  can  acquire  no  lien, 
where  at  the  time  of  filing  the  notice  there  is  nothing  due  to  the  contractor, 
is  the  case  of  an  assignment  by  the  contractor  of  his  property  in  trust  for 
the  benefit  of  his  creditors. 


NEW  YOKE— DECEMBER,  18C3.  339 

Gates  v.  Haley. 

No  lien  attaches  by  the  mere  performance  of  work  pursuant  to  the  contract, 
but  it  is  gained  only  by  filing  the  notice  prescribed  by  the  statute,  and  until 
that  notice  is  filed,  the  contractor,  while  acting  in  good  faith,  may  deal  with 
and  dispose  of  the  indebtedness  which  may  accrue  to  him  under  the  con- 
tract, as  he  may  by  law  with  any  other  maturing  indebtedness. 

APPEAL  by  the  plaintiff  from  a  judgment  at  Special  Term, 
confirming  the  report  of  the  referee. 

The  action  was  brought  by  the  plaintiff  as  a  sub-contractor, 
against  the  defendant  Haley  as  contractor,  and  Stone  as 
assignee  of  the  contractor  and  of  the  owner  Kenney.  The 
referee  (Hon.  Albert  Cardozo)  found  as  matters  of  fact — 

"  1st,  That  defendant  Kenney  was  the  owner  'of  two  lots 
known  as  Nos.  232  and  234  "West  Thirty-seventh  Street,  in  the 
City  of  New  York ;  and  that  about  October  23rd,  1860,  he 
entered  into  an  agreement  with  defendant  Haley,  by  which 
the  latter  was  to  erect  for  said  Kenney  certain  buildings  upon 
said  lots,  for  which  Kenney  agreed  to  pay  said  Haley  (in 
divers  payments)  the  sum  of  twenty-six  hundred  dollars. 

"That  subsequently  the  plaintiff  entered  into  a  verbal 
agreement  with  Haley  to  do  certain  parts  of  such  buildings 
and  furnish  certain  materials,  fur  which  Haley  agreed  to  pay 
Gates  the  sum  of  three  hundred  dollars.  That  Gates  did  the 
work  so  agreed  to  be  done  by  him,  and  which  was  in  accord- 
ance with  the  contract  between  Haley  and  Kenney,  and  that 
such  work  was  completed  prior  to  the  sixth  day  of  May,  1861, 
and  that,  on  said  last  mentioned  day,' there  remained  due  and 
unpaid  to  Gates,  for  such  work,  the  sura  of  one  hundred  and 
forty -six  dollars  and  forty  cents;  and  that,  upon  that  day, 
Gates  tiled  in  the  office  of  the  Clerk  of  the  City  and  County 
of  New  York  a  notice  to  effect  a  mechanic's  lien  upon  said 
premises  for  said  amount. 

"  2nd,  That  on  the  22nd  day  of  January,  1861,  the  defend- 
ant Haley  assigned  the  payments  due  and  to  become  due  to 
him,  under  the  contract  between  him  and  Kenney,  to  the 
defendant  Stone,  for  the  purpose,  among  other  things,  of 
securing  to  Stone  the  payments  for  lumber  and  materials 
which  Stone  had  agreed  to  furnish  to  said  Haley  ;  and  that 
said  Stone  did  furnish  lumber  and  materials  to  said  Hale}',  after 
such  assignment,  and  that  such  assignment  was  made  without 
any  fraudulent  intent  whatsoever,  and  that  the  amount  due  to 


340  COURT  OF  COMMON  PLEAS. 

Gates  v.  Haley. 

said  Stone  for  snch  lumber  and  materials  is  unliquidated,  and 
in  part  at  least  unpaid.  That  the  plaintiff  had  not  notice  of 
such  assignment  to  said  Stone,  when  he,  the  said  plaintiff, 
entered  into  said  agreement  with  defendant  Haley ;  but  that 
before  the  plaintiff  had  done  any  considerable  amount  of  such 
work,  and  furnished  any  considerable  amount  of  materials,  he, 
said  plaintiff,  had  notice  of  the  assignment  to  said  Stone,  and 
that  with  such  notice  thereof  he  proceeded  with  the  work." 

Upon  the  foregoing  facts,  the  referee  found  and  decided  as 
matters  of  law  : 

"  1st,  That  the  defendant  Stone,  before  said  plaintiff  filed 
any  lien,  became  the  legal  owner,  for  a  valuable  consideration, 
of  the  payments  due  and  to  become  due  to  Haley,  under  the 
contract  between  Kenney  and  Haley,  and  that,  therefore,  the 
plaintiff  cannot  have  or  maintain  a  lien  under  the  mechanic's 
lien  law. 

"2nd,  That  the  complaint  in  this  action  be  dismissed." 

The  referee  decided,  on  the  question  of  costs,  that  neither 
party  should  have  costs  against  the  other,  except  the  defend- 
ant Stone,  who  should  have  judgment  against  the  plaintiff  for 
the  costs  of  this  action. 

Judgment  having  been  entered  upon  this  report,  the 
plaintiff  appealed  to  the  General  Term. 

William  R.  Stafford,  for  appellant. 

I.  The  assignment  of  the  payments  to  become  due  under 
the  contract,  by  Hale}r  to  Stone,  did  not  change  the  relation 
existing  between  the  plaintiff  and  Haley  ;  nor  between  Haley 
and  the  owner  Kenney ;  nor  affect  their  obligations  in  any  way. 
Haley  remained,  after  as  before  the  assignment,  the  contractor, 
and  responsible  to  the  owner  for  the  performance  ;  and  Stone 
as  assignee  was  not  thereby  substituted  in  the  place  of  Haley  ; 
nor  did  he  contract  any  liability  to  perform  Haley's  contract, 
or  acquire  arty  right  to  the  moneys  to  become  due  on  its 
performance  beyond  the  balance  which  might  remain  after 
the  owner  had  retained  enough  to  discharge  the  liens  of  the 
workmen  employed  by  Haley.  (Mandeville  v.  Reed,  13 
Abbott,  179 ;  Randolph  v.  Garvey,  10  Abbott,  179  ;  Telfer  v. 
Kierstea,!,  2  Hilton,  577;  Smith  v.  Coe,  2  Hilton,  365.) 


NEW  YOKK— DECEMBER,   1863.  311 

Gates  v.  Haley. 

II.  The  assignment  was  of  an  equitable  interest  merely,  and 
•was  subject  and  subordinate  to  the  rights  vested  in  the 
mechanic  by  the  lien  law.  Haley  could  not  assign  to  Stone 
any  greater  rights  than  he  himself  had ;  and  in  taking  the 
assignment,  Stone  placed  himself  in  Haley's  shoes,  and  was 
bound  to  take  notice  of  the  law  by  which  a  specific  lien  could 
be  created  upon  the  fund  assigned  in  favor  of  the  parties 
earning  it.  (Field  v.  The  Mayor,  6  N.  Y.,  179  ;  Carman  v. 
Mclncrow,  2  E.  D.  Smith,  669 ;  Donaldson  v.  Wood,  22  Wend- 
ell, 395  ;  Munsell  v.  Lewis,  4  Hill,  635.) 

HI.  The  mechanic's  inchoate  right  of  lien  cannot  be  defeated 
by  assignments  to  secure  one  creditor  at  the  expense  of  others. 
The  whole  object  of  the  statute  would  thus  be  evaded,  and  the 
lien  of  the  artisan,  u  more  highly  favored  both  in  law  and 
equity  than  any  other,"  (2  Kent,  812,)  be  utterly  destroyed. 
(Twelves  v.  Williams,  3  Wharton,  485  ;  'Jackson  v.  Cummins, 
5  Mees.  &  W.,  342  ;  Houghton  v.  Mathews,  3  Bos.  &  P.,  492.) 

IV.  The  transfer  of  the  payments  to  become  due,  by  Haley 
to  Stone,  was  not  upon  such  an  immediate,  present  considera- 
tion as  to  constitute  Stone  a  bonajide  purchaser.  (Stuyvesant 
v.  Hall,  2  Barb.,  Ch.  151, 158  ;  Truscott  v.  King,  6  Barb.,  346.) 

At  most,  Stone  became  a  trustee  of  the  fund  for  the  purpose 
of  paying  first  those  who  had  earned  it  and  acquired  a  specific 
lien  upon  it,  and  then  himself. 

Cephas  Brainerd,  for  respondent  Stone. 

I.  The  defendant   Stone,  by  the  assignment  from  Haley, 
became  absolutely  the  owner  of  all  the  payments  accruing 
under  the  contract  with Kenney,  and  no  claim  of  a  third  party, 
no  matter  how  created,   could  be  interposed  to  defeat  that 
right.     (1.)    The  cases  hold  that  an  assignment  of  payments 
under  a  contemplated  contract,  takes  effect  upon  the  payments 
becoming  due,  to  the  exclusion  of  a  scire  facias  sued  out  by  a 
creditor  of  the    contractor  after  the    payments  became  due. 
(Field  v.  The  Mayor,  <&c.,  6  N.  Y.,  179  ;    Crocker  v.  Whitney, 
10  Mass.,  316 ;    Hartley  v.  Tapley,  2  Gray,  565  ;    Thayer  v. 
Kelley,  2  Wms.,  [28  Vt.,]  20.) 

II.  The  proposition  of  law  sought  to  be  maintained  is  this  : 
that  from  the  time  of  making  the  contract,  the  sub-contractor 


342  COURT  OF  COMMON  PLEAS. 

Gates  v.  Haley. 

has  an  equitable  lien  under  the  law  of  1851,  which  cannot  be 
divested  by  the  act  of  any  third  party.  True,  it  is  here  limited 
in  its  application  to  the  acts  of  the  contractor,  but  if  good  in  its 
application  to  this  case,  it  reaches  to  all  others.  This  cannot 
be  the  rule,  because,  (1.)  This  right  of  lien  is  the  creature  of 
statute  ;  it  does  not  extend  by  implication  beyond  the  face  of 
the  enactments.  At  common  law,  a  debt  of  the  character 
sought  to  be  enforced  here,  was  no  more  favored  than  any 
other.  Our  statute  provides  that  the  mechanic  "  shall,  upon 
filing  the  notice  prescribed  in  the  sixth  section  hereof,  have  a. 
lien  for  the  value,"  <fcs.;  and  it  further  provides  that  the  notice 
shall  be  tiled  "after"  the  work  has  been  performed  or  the 
materials  furnished.  Before  the  notice  of  lien  is  filed,  the 
rights  of  all  parties  stand  as  before  the  statute.  The  mechanic 
stands  in  the  old  common  law  relation  to  the  work.  (Livingston 
v.  Mildrum,  19  N.  Y".  R.,440,  444;  Carman  v.  Mclncrow,  13 
N.  Y.,  72  ;  Cronk  v.  Whittdker,  1  E.  D.  Smith,  847  ;  Kenny 
v.  Gage,  33  Vt.  R.,  847.)  (2.)  This  proposition  is  supported 
by  the  decisions,  holding  in  express  terms,  that  the  notice  when 
filed,  only  binds  the  fund  due  to  the  contractor  at  the  time  of 
filing,  and  such  as  may  subsequently  become  due.  The  cases 
are  all  one  way  on  this  subject.  (Miller  v.  Moore,  1  E.  D. 
Smith,  739 ;  Allen  v.  Carman,  Id.,  692  ;  Chamberlain  v. 
O'Connor,  Id.,  665  ;  /Sullivan  v.  Decker,  Id.,  699  ;  Quimby  v. 
Sloan,  2  Id.,  594  ;  Sinclair  Y.  Fitch,  3  Id.,  677  ;  Cox  v.  ^rod- 
erick,  Id.,  721 ;  Smith  v.  Coe,  2  Hilton,  365 ;  Telfer  v.  Kierstead, 
Id.,  577.) 

III.  All  the  equities  in  this  case  are  with  Stone.  Oates 
had  notice  of  this  arrangement,  and  the  purpose  of  it,  when  he 
made  his  bargain. 

He  had  full  notice  of  the  fact  of  the  assignment  when  he 
began  his  work,  or  at  least  before  he  had  done  anything  of 
any  account. 

After  all  this,  he  went  on  with  the  work  and  availed  himself 
of  the  advantages  accruing  to  the  whole  of  the  workmen, 
by  this  assignment ;  he  received  money  and  obtained  lumber 
under  it. 

When  Gates'  lien  was  filed,  therefore,  there  was  nothing  due 
on  the  contract  from  Kenney  to  Haley,  and  consequently  there 


NEW  YORK— DECEMBER,    1863.  343 

Gates  v.  Haley. 

was  nothing  to  which  the  lien  could  attach.  The  referee 
was  right  in  his  disposition  of  the  case  as  against  Gates,  and 
the  judgment  should  be  affirmed  with  costs. 

Jo\n  Davidson,  for  respondent  Haley. 

HILTON,  J. — Under  the  mechanic's  lien  law,  the  sub-con- 
tractor, by  filng  his  notice  of  lien  in  the  manner  prescribed 
acquired  only  the  right  to  be  subrogated  to  the  claims  of  the 
contractor  under  the  contract  made  with  the  owner.  But  if,  at 
the  time  of 'filing  the  notice,  there  is  nothing  due,  and  nothing 
thereafter  becomes  due  under  the  contract,  to  the  contractor 
from  the  owner,  the  sub-contractor  acquires  nothing  by  his 
lien.  The  only  exception  that  I  am  aware  of  to  the  rule 
as  thus  stated,  is  the  case  of  an  assignment  by  the  contractor 
of  his  property,  in  trust  for  the  benefit  of  his  creditors,  and  the 
reason  for  the  exception  there  is,  that  as  such  assignees  stand 
in  the  place  of  the  contractor,  and  act  substantially  for  his 
benefit,  if  they  perform  the  contract  for  him,  or  become  entitled 
to  any  payments  under  it,  the  sub-contractor  may  acquire  a 
lien  to  the  same  extent  as  if  the  assignment  had  not  been  made. 

But  it  is  otherwise  where  it  is  shown,  as  was  the  case  here, 
that,  prior  to  the  filing  of  any  notice  claiming  a  lien  by  a  sub- 
contractor, the  contractor  in  good  faith  and  for  a  full  consider- 
ation transferred  to  a  purchaser  the  rights  which  the  contractor 
might  thereafter  acquire  to  any  payments  under  the  contract. 

Under  such  a  transfer  the  purchaser  succeeds  to  the  rights 
of  the  contractor  upon  the  contract  freed  from  any  lien  which 
might  thereafter  have  been  acquired  had  the  transfer  not 
been  made. 

No  lien  attaches  by  the  mere  performance  of  work  pursuant 
to  the  contract,  but  it  is  gained  only  by  filing  the  notice 
prescribed  by  the  act,  and  until  that  notice  is  filed,  the ' 
contractor,  while  acting  in  good  faith,  may  deal  with  and 
dispose  of  the  indebtedness  which  may  accrue  to  him  under 
the  contract  as  effectually  as  he  may  by  law  with  any  other 
maturing  indebtedness. 

I  think  the  judgment  should  be  affirmed. 


COCJRT  OF  COMMON"  PLEAS. 


Gates  v.  Haley. 


BRADY,  J.  —  The  contract  was  assigned  to  Stone  as  security 
for  materials  to  be  furnished  which  were  necessary  to  enable 
the  contractor  to  perform.  The  plaintiff  knew  of  the  assign- 
ment, and  said,  with  such  knowledge,  that  he  was  satisfied  to 
go  on.  with  the  work.  The  evidence  shows  that  Stone's  debt 
was  not  paid.  This  case  differs  from  one  in  which  an  assign- 
ment appears,  made  for  the  benefit  of  creditors.  Stone  was 
the  person  through  whose  aid  the  contractor  went  on  with  the 
building,  and  to  secure  the  advances  he  made  the  assignment 
was  executed.  He  certainly  has  a  superior  equity  to  the 
plaintiff,  if  the  equities  were  to  control.  I  think  the  judgment 
should  be  affirmed. 

Judgment  affirmed. 


CHAKLES  H. -BYRNE  -y.  PEDRO  A.   HERRAN. 

A  minister  plenipotentiary  of  a  foreign  power  is  not  exempt  from  the  applica- 
tion of  the  mechanic's  lien  law  of  this  State,  as  to  any  house  or  building 
which  is  not  used  as  a  mansion  for  purposes  connected  with  his  representa- 
tive character ;  and  where  exemption  is  claimed,  it  must  appear  by  the 
proof  that  he  is  entitled  to  a  suspension  of  the  rule  that  the  lex  rei  sites,  con- 
trols. 

"Where,  therefore,  on  a  motion  for  an  order  to  join  issue  on  the  merits,  in  a 
proceeding  to  foreclose  a  mechanic's  lien,  it  does  not  appear  that  the  build 
ing  was  erected  by  the  defendant  for  his  residence  as  such  minister, — field, 
that  the  motion  of  joining  of  issue  should  be  granted. 

APPEAL  by  the  plaintiff  from   an    order   at   Special  Term 
denying  plaintiff's  motion. 

The  plaintiff  commenced  a  proceeding  to  foreclose  a  Mechan- 
ic's Lien. 

•  The  lien  was  duly  filed  in  the  office  of  the  Clerk  of  the  City 
and  County  of  New  York,  on  the  18th  of  March,  1863.  The 
usual  notice  of  foreclosure,  and  a  bill  of  particulars,  were  served 
on  the  wife  of  flie  owner,  his  agent,  in  the  premises,  more  than 
twenty  days  before  the  5th  day  of  May,  1863,  requiring  the 
owner  to  appear  and  submit  to  an  account  and  settlement  as 
stated  in  said  notice,  filed  in  this  court. 

The  defendant  appeared  by  his  attorneys,  who  objected  to 
the  jurisdiction  of  the  Court  in  the  premises. 


NEW  TOEK— DECEMBER,  1863.  345 

Byrne  v.  Herran. 

It  was  admitted  by  the  counsel,  on  the  argument,  that  the 
defendant  was  at  the  time  of  filing  the  notice  of  the  lien,  a 
minister  plenipotentiary  of  the  Republic  of  Granada,  whose 
official  residence  was  in  "Washington. 

The  court  (HILTON  J.)  denied  the  motion  for  an  order  to 
join  issue  on  the  merits  under  the  provisions  of  the  mechanic's 
lien  law,  with  leave  to  the  plaintiff  to  take  an  appeal  to  the 
General  Term. 

The  plaintiff  appealed. 
J.  B.  Tully,  for  appellant. 

I.  A  valid  mechanic's  lien  is  in  effect  a  mortgage  upon  the 
premises   against  which  it  is  filed.     Proceedings  under  the 
"  Mechanic's  Lien  Law,"  when  against  the  owner  of  the  ground 
and  buildings,  and  when  no  personal  claim  is   made   against 
such  owner,  are  proceedings  in  rem,  and  do  not  affect  the  person 
at  all.     The  validity  of  the  lien  filed  in  this  matter  is  not  dis- 
puted. (Conkright  v.  Thompson,  1  E.  D.  Smith,  661  ;  Quimtyv. 
Sloan,  2  Id.  594;  Randolph  v.  Leary,  3  Id.  637. 

II.  The  protection  guaranteed  to  foreign  ministers  attaches 
only  to  their  persons,  and  their  personal  property  and  servants, 
these  being  considered  necessary  for  their  rank,  dignity  and 
cdmfort.  There  is  neither  law  nor  precedent  for  allowing  a  for- 
eign minister  to  own  real  estate   in   a   country    which  estate 
should  be  exempt  from  the  usual  obligations,  taxes  and  incidents 
attaching  to  such  property.     (1  Kent's  Com.,    p.   46   etseq. 
"Wheaton's  Law  of  Nations,  243.) 

III.  Every  piece  of  real  estate  and  building  m  the  County 
of  New  York  is  subject  to  the  operation  of  the  "  Mechanic's 
Lien  Law,"  under  a  certain  state  of  facts.     That  state  of  facts 
can  be  shown,  indeed,  is  shown  to  exist  in  relation  to  the  pro- 
perty described  in  this  notice,  and  hence  it  must  be  held  to  be 
subject  to  that  law,  or  to  be  without  the  limits  of  the  County 
and  the  jurisdiction  and  control  of  the  State.    (3  R.  S.  5  ed.  p. 
812.) 

Cummins,    Alexander  &  Green,  for  respondents. 

Under  the  well  established  rules  of  the  Laws  of  Nations  an 


346  COURT    OF    COMMON    PLEAS. 

Byrne  v.  Herran. 

Embassador  or  Minister  Plenipotentiary  cannot  be  sued  in  any 
of  the  courts  of  this  State  in  any  form  of  action  whatsoever. 

BY  THE  COURT. — BEADY,  J. — The  general  rule  of  the  com- 
mon law  as  to  real  or  immovable  property  is,  that  the  laws  of 
the  place  where  such  property  is  situate  govern  in  respect  to 
the  rights  of  the  parties,  the  modes  of  transfer,  and  the  solem- 
nities which  should  accompany  them.  (Story's  Conflict  of 
Laws,  §  424.) 

Let  us  conclude,  therefore,  says  Yattel  (Laws  of  Nations, 
493,)  that  immovable  property  possessed  by  a  foreign  Minister 
does  not  change  its  nature  in  consequence  of  the  character 
conferred  on  its  owner,  but  continues  subject  to  the  jurisdic- 
tion of  the  State  in  which  it  lies.  All  contests  and  law  suits 
concerning  that  property  are  to  be  carried  on  before  the  tribu- 
nals of  the  country,  and  those  tribunals  may  decree  its  seizure 
in  order  to  satisfy  any  legal  claim. 

If,  however,  the  Ambassador  lives  in  a  house  of  his  -own, 
that  house  is  excepted  from  the  rule,  as  actually  serving  for 
his  immediate  use — excepted.  says  Vattel,  in  whatever  may 
effect  the  present  use  which  the  Ambassador  makes  of  it.  (See 
Novella  v.  Toogood,  1  Barn.  &  Cress.,  554.) 

If  the  house  against  which  the  lien  in  this  case  is  sought  to 
be  enforced  was  erected  by  the  defendant,  for  his  residence  as 
a  Minister  Plenipotentiary,  then  it  is  exempt  from  sale,  and 
cannot  be  sold.  Whether  it  .was  so  erected  or  not  does  not 
appear,  and  for  that  reason  the  order  of  the  Special  Term 
should  be  reversed.  A  Minister  Plenipotentiary  is  not  exempt 
from  the  application  of  the  lien  law  as  to  any  house  or  building 
which  is  not  used  as  a  mansion  for  purposes  connected  with  his 
representative  character,  and  when  exemption  is  claimed  ft 
must  appear  by  proof  that  he  is  entitled  to  a  suspension  of  the 
rule  that  the  lexrei  sitce  controls. 

Ordered  accordingly,  with  ten  dollars  costs  to  abide  event 
of  the  action. 


NEW   YOEK— DECEMBER,  1863.  347 

Arent  v.  Squire. 


ABENT  v.  SQTJIBE  &  JOHNSON.* 

A  warehouseman  who  takes  goods  upon  storage  for  hire  is  answerable  for 
their  loss,  or  the  loss  of  any  part  of  them,  not  proceeding  from  the  inherent 
nature  of  the  goods,  such  as  absorption,  deterioration  or  like  cause,  unless 
he  can  show  that  the  loss  occurred  under  circumstances  exonerating  him  from 
all  blame ;  or  if  he  cannot  do  that,  that  he  exercised  a  degree  of  care  in 
their  safe-keeping  that  would  repel  any  suspicion  of  the  loss  having  occurred 
through  his  negligence  or  dishonesty. 

It  is  sufficient  for  the  plaintiff  in  the  action  to  show  that  the  property  entrusted 
to  the  warehouseman  has  not  been  restored  upon  demand,  or  has  been  re- 
turned diminished  in  quantity,  or  injured.  It  is  then  incumbent  upon  the 
defendant  to  show  how  the  loss  or  injury  occurred,  or  that  he  exercised 
proper  care, — as  it  is  to  be  assumed  that  the  one  who  had  the  control  and 
custody  of  the  property,  is  better  able  to  account  for  its  loss  or  injury  than 
the  one  who  confided  it  to  his  keeping. 

The  presumption  that  all  persons  are  presumed  to  have  duly  discharged  any 
duty  imposed  upon  them  by  law,  is  allowed  for  the  benefit  of  those  entrusted 
with  the  discharge  of  public  duties  as  well  as  for  those  interested  in  or  affected 
by  the  discharge  of  them.  Whether  a  presumption  of  this  nature  is  to  be 
applied  to  private  persons  or  not,  will  depend  upon  the  circumstances  of  each 
particular  case. 

Where  a  bailee  for  hire  returns  the  property  committed  to  his  care  materially 
injured  or  fails  to  return  all  that  was  entrusted  to  him,  it  is  a  more  legitimate 
inference  to  conclude  that  there  was  a  want  of  proper  care  and  diligence 
than  to  presume  that  it  was  exercised. 

The  plaintiff  stored  with  the  defendant  ten  pipes  of  gin,  which  were  gauged  in 
the  defendants'  wareroom  on  the  day  when  they  were  received,  and  when 
gauged,  upon  their  redelivery  to  the  plaintiff,  there  was  found  to  be  a  de- 
ficiency in  two  of  the  pipes  of  about  sixty  gallons,  to  recover  for  the  value 
of  which  the  action  was  brought.  Upon  this  state  of  facts,  the  defendants 
moved  for  a  non-suit  upon  the  ground  that  there  was  nothing  to  show  that 
the  loss  was  occasioned  by  their  negligence, — Hdd,  that  the  motion  was 
properly  denied. 

The  defendants  then  proved  that  the  two  pipes  were  stored  with  the  rest  in  a 
loft  to  which  nobody  had  access  but  themselves  and  their  employees.  They 
gave  some  evidence  of  the  trustworthiness  of  their  employees,  but  neither 
they  nor  their  employees  were  examined  as  witnesses  to  show  that  they 
knew  nothing  of  the  manner  in  which  the  loss  occurred,  and  there  was 
evidence  from  which  it  was  fairly  inferable  that  the  two  pipes  had  been  re- 
ooopered  while  in  the  defendants'  loft,  but  by  whom  or  for  what  purpose 
was  not  shown  ; — Held,  not  sufficient  to  exonerate  them  from  liability. 

This  was  an  appeal  from  the  Fifth  District  Court.  The  action 
*  This  case  was  decided  at  the  April  General  Term,  1858. 


348  COURT  OF  COMMON  PLEAS. 

1   « 

Arent  v.  Squire. 

was  to  recover  for  the  loss  of  gin  stored  with  the  defendants,  of 
the  value  of  fifty-seven  dollars. 

The  plain  tiff  proved  that  he  stored  ten  pipes  of  gin  with  the 
defendants,  who  keep  a  bonded  warehouse  in  the  city  of  New 
York  ;  that  they  remained  upon  storage  for  four  months,  when 
they  were  delivered  to  the  plaintiffs  cartman,  the  defendants 
being  paid  for  the  storage.  Two  of  the  pipes  were  delivered 
on  the  6th  of  September,  1857.  They  were  brought  by  the 
cartman  to  a  warehouse  in  Duane  street,  where  the  workmen, 
in  rolling  them  into  the  warehouse,  discovered  that  there  was 
liquor  out  of  each  pipe.  Within  ten  minutes  after  the  delivery 
by  the  cartman,  his  attention  was  called  to  the  deficiency  of 
liquor  in  the  casks,  and  the  book-keeper  of  the  warehouse  then 
proceeded  to  gauge  them,  when  he  found  a  deficiency  in  both 
casks  of  sixty-eight  gallons.  Two  days  after  they  were  guaged 
by  a  city  gauger,  who  found  a  deficiency  of  seventy  gallons  in 
both  pipes,  being  two  gallons  more.  It  was  further  proved 
that  these  two  pipes  were  gauged  by  a  gauger  in  the  defend- 
ants' warehouse  upon  the  day  when  they  were  received  there, 
and  that  there  were  but  three  gallons  out  of  one  pipe,  and  six 
out  of  the  other,  slfowing  that  there  was  a  deficiency  of  about 
ten  gallons  when  the  casks  were  deposited  by  the  plaintiffs 
cartman  in  the  warehouse  in  Dnane  street.  The  cartman  tes- 
tified that  the  two  pipes  were  about  a  half  an  hour  upon  his 
cart,  that  he  did  not  take  any  out,  that  he  did  not  leave  his 
cart,  but  delivered  them  in  the  same  condition  in  which  he  re- 
ceived them.  It  was  further  proved  that  when  the  pipes  were 
received  at  the  warehouse  in  Duane  street,  they  -were  in. 
excellent  condition — that  there  was  no  indication  of  leakage — 
that  there  was  a  chalk  mark  on  one  of  the  pipes  to  indicate 
the  place  where  the  hoop  was  to  be  put ;  that  both  pipes 
showed  marks  of  cooperage,  and  that  any  one  familiar  with 
liquor  would  know  upon  rolling  a  pipe  upon  its  side  whether 
thirty  gallons  were  out  or  not.  The  plaintiff  then  proved  the 
value  of  the  gin  per  gallon* 

Upon  this  evidence  the  plaintiff  rested,  and  the  defendant 
moved  for  a  dismissal  of  the  complaint,  upon  the  ground  that 
no  negligence  had  been  shown  on  the  part  of  the  defendants 
as  alleged  in  the  complaint,  which  was  denied  by  the  Justice, 
and  the  defendants  excepted. 


1STEW  YORK— DECEMBER,  18G3.  349 

Arent  v.  Squire. 

The  defendants  then  called  their  out-door  clerk,  who  testified 
that  he  delivered  the  two  pipes  to  the  cartman  upon  the  plain- 
tiffs order — that  they  were  then  in  good  condition — that  he 
did  not  observe  any  marks  upon  them  ;  that  it  was  often  neces- 
sary to  open  packages  in  the  warehouse,  and  that  the  chalk 
marks  spoken  of  was  no  sign  of  negligence,  and  that.it  was  fre- 
quently done.  That  no  person  could  have  access  to  the  gin, 
unaccompanied  by  one  of  the  employees  of  the  warehouse ; 
that  there  was  no  complaint  made  as  to  any  of  the  gin  stored 
with  these  two  pipes,  nor  any  complaint  of  the  loss  of  liquor 
or  goods  at  the  defendants'  warehouse  except  in  July,  1857 ; 
that  all  the  goods  in  the  defendants'  warehouse  are  in  the  cus- 
tody of  the  United  States  officers,  and  are  always  under  the 
lock  and  key  of  the  United  States.  That  there  is  an  officer  of 
the  United  States  in  the  warehouse,  and  that  no  goods  can  be 
taken  out  without  his  order.  That  there  are  eight  or  ten  per- 
sons employed  in  the  warehouse — six  porters  who  work 
through  every  floor,  and  have  access  to  every  part  of  the 
building.  That  these  parties  are  entirely  trustworthy  ;  that 
there  was  no  reason  to  suspect  any  of  the  defendants'  em- 
ployees of  stealing,  and  that  he  never  heard  of  any  loss  where 
the  packages  were  in  good  condition. 

Another  witness  was  then  called  by  the  defendants,  who  tes- 
tified that  he  rolled  out  <;  most  of  the  ten  pipes  ;"  that  he  did 
not  "  roll  away  one  that  had  any  thing  like  thirty  gallons  out 
of  it ;"  that  he  could  not  have  put  his  hand  to  a  pipe  without 
knowing  it,  if  such  were  the  fact ;  and  the  defendants  further 
gave  in  evidence  that  two  or  three  days  after  the  gin  was  de- 
livered, all  the  porters  were  called  up  and  asked  if  they  had 
rolled  out  any  pipes  with  liquor  missing,  and  they  testified  they 
had  not.  It  further  appeared  that  the  two  pipes  had  been 
coopered  while  in  the  defendants'  loft,  but  by  whom  or  for  what 
purpose  the  defendants  did  not  show. 

Both  parties  having  rested  upon  the  evidence,  the  justice  gave 
judgment  for  the  value  of  the  gin  found  missing. 

S.  P.  Brownell,  for  the  appellant. 
L.  Cohen,  for  the  respondent. 


350  COURT  OF  COMMON  PLEAS. 

Arent  v.  Squire. 

BY  THE  COUBT. — DALY,  F.  J. — The  question  in  this  case  is 
whether  it  was  incumbent  upon  the  plaintiff  to  show  how  the 
gin  was  lost,  and  that  it  was  through  the  defendant's  negli- 
gence, or  if  this  point  should  be  determined  in  the  plaintiff's 
favor,  if  there  was,  upon  the  whole  case,  sufficient  evidence 
to  charge  the  defendants. 

The  defendants,  as  keepers  of  a  warehouse  in  which  the  gin 
was  received  upon  storage  for  hire,  were  bound  to  exer- 
cise ordinary  diligence,  or  that  care  which  prudent  persons 
usually  take  of  their  own  property.  (Cailiff  v.  Danvers,  1 
Peake,  N.  P.  C.,  114  ;  Finucane  v.  Small,  1  Esp.,  315  ;  Thomas 
v.  Prov.  &  Boston  R.  R.  Co.,  10  Met.,  472  ;  Jones  on  Bail- 
ments^ 7  ;  Angell  on  Carriers,  §  45 :  Edwards  on  Bailments, 
§  284.) 

Warehousemen  are  not  insurers  of  the  safety  of  the  property 
entrusted  to  their  care,  and  are  not  liable  in  the  event  of  loss, 
if  they  take  what  Mr.  Justice  STORY  calls  reasonable  and  com- 
mon care  of  it.  To  this  extent  the  law  is  well  settled;  but 
where  property  committed  to  their  charge  is  lost,  missing  or 
injured,  the  authorities  are  by  no  means  agreed  upon  the 
(question  whether  the  obligation  is  upon  them  to  remove  any 
imputation  of  its  having  occurred  through  their  connivance  or 
negligence,  by  showing  that  they  took  proper  care  of  it,  or 
whether  it  rests  upon  those  who  would  hold  them  responsible, 
to  establish  that  there  was  a  want  of  it. 

It  is  said  that  every  person  is  presumed  to  do  his  duty  until 
the  contrary  is  shown,  and  that  the  burthen  is  on  a  plaintiff  to 
negative  that  presumption  by  appropriate  proofs.  (Story  on 
Bailments,  §  213.)  It  is  admitted,  however,  by  the  learned 
author,  from  whom  this  language  is  quoted,  that  it  is  deserving 
of  consideration  how  far  this  principle  ought  to  govern  in 
cases  of  bailments  generally.  In  my  judgment  its  application  in 
such  cases  is  very  limited.  If  a  man  who  is  paid  for  his  care 
and  trouble  in  taking  charge  of  property,  returns  it  materially 
injured,  or  diminished  in  quantity,  or  fails,  when  requested,  to 
return  it  at  all,  there  is  no  foundation  for  any  such  presump- 
tion. But  I  shall  have  occasion  to  recur  to  this  point  again 
after  examining  how  the  general  question  stands  upon  the 
authorities. 

In  Plait  v.  Hibbard,  (7  Cow.,  500)  Chancellor  WALWORTH, 
then  Circuit  Judge,  instructed  the  jury  that  "  in  all  cases  of 


NEW  YOEK— DECEMBER,  1863.  351 

Arent  v.  Squire. 

bailment  of  property  to  a  person  who  carries  on  a  public 
business  of  receiving  it  into  his  custody  or  under  his  care,  for 
reward,  it  is  necessary  that  a  strict  rule  should  be  enforced 
against  the  bailee  to  prevent  fraud.  Hence,  when  property 
entrusted  to  a  warehouseman,  wharfinger,  or  storing  or  forward- 
ing merchant,  in  the  ordinary  course  of.  business,  is  lost, 
injured  or  destroyed,  the  weight  of  proof  is  with  the  bailee  to 
show  a  want  of  fault  or  negligence  on  his  part ;  or  in  other 
words,  to  show  that  the  injury  did  not  happen  in  consequence 
of  his  neglect  to  use  all  the  care  and  diligence  on  his  part, 
that  a  prudent  or  careful  man  would  exercise  in  relation  to  his 
own  property."  The  correctness  of  this  instruction  did  not 
come  under  consideration  in  the  subsequent  review  of  the  case 
before  the  Court  in  bane  as  the  verdict  was  for  the  defendant 
and  the  ruling  was  favorable  to  the  plaintiff ;  but  in  a  note 
appended  by  the  learned  reporter,  it  was  questioned  upon 
the  authority  of  several  English  cases  which  will  be  hereafter 
considered. 

In  this  note  Justice  COWEN  states  the  rule  to  be  as  follows  : 
"  When  there  is  a  total  default  to  deliver  the  goods  bailed  on, 
demand,  tliQ'Onus  of  accounting  for  the  default  lies  with  the 
bailee,  otherwise  he  shall  be  deemed  to  have  converted  the 
goods  to  his  own  use  and  trover  will  lie  ;  but  when  he  has  shown 
a  loss,  or  where  the  goods  are  injured,  the  law  will  not  intend 
negligence.  The  onus  is  then  shifted  upon  the  plaintiff.  In 
the  case  of  a  common  carrier,  however,  the  rule  is  different,  as 
the  law  presumes  against  him  in  all  cases,  even  of  accident, 
until  he  shows  the  loss  or  injury  to  hava  arisen  from  the 
enemies  of  the  state  or  the  act  of  God,"  and  in  support  of  this 
view  he  cites  with  approbation  a  remark  of  Mr.  Balmanno,  the 
editor  of  Jones  on  Bailments,  to  the  effect  that  in  the  case  of 
bailees  other  than  common  carriers,  it  is  inconsistent  with 
legal  principles  to  presume  that  they  acted  contrary  to  the 
trust  reposed  iti  them.  In  Schmidt  v.  Blood,  (9  Wend.,  271,) 
Justice  Sutherland  said  that  in  an  action  against  a  warehouse- 
man the  onus  of  showing  negligence  seems  to  be  upon  the 
plaintiff  unless  there  is  a  total  default  in  delivering  'or  account- 
ing for  the  goods,  and  in  Foot  v.  Stoirs,  (2  Barb.,  S.  C.,  329) 
WILLARD,  J.,  reverses  the  instruction  given  by  WALWORTH,  C.  J. 
in  Platt  v.  Hibbard,  supra,  and  says  that  the  rule  in  this  State 
is  believed  to  be  otherwise.  In  his  opinion,  as  the  bailee  is 
bound  only  to  ordinary  care,  the  plaintiff  must  give  soipe 


352  COUKT  OF  COMMON  PLEAS. 

Arent  v.  Squire. 

evidence  of  the  want  of  it,  and  cannot  recover  upon  mere  proof 
of  the  loss,  but  he  gives  no  reason  and  refers  to  no  authorities, 
The  question  has  been  more  fnlly  examined  in  the  Courts  of 
Pennsylvania.  In  Beekman  v.  Schown,  (5  Rawle,  189)  ROGERS, 
J.  says,  "  It  is  necessary  for  them  (bailees  for  hire)  to  show 
why  they  have  not  performed  the  contract.  In  the  absence 
of  all  proof  of  loss,  they  lay  themselves  open  to  the  imputation 
that  the  property  is  still  in  their  possession,  or  in  the  possession 
of  their  agents,  or  has  been  embezzled  by  them,  and  in  either 
case,  it  is  clear  that  they  would  be  liable  to  the  plaintiff.  .  .  . 
It  is  true  that  where  a  loss  has  been  proved,  ordinary  care  in 
the  carrier  is  presumed,  and  the  onus  is  thrown  upon  the  plain- 
tiff, but  all  a  plaintiff  has  to  do  in  the  first  instance  is  to  prove 
the  contract  and  the  delivery  of  the  goods,  and  this  throws  the 
burden  of  proof  that  the  goods  were  lost  upon  the  carrier, 
*  *  *  *  a  salutary  principle,  for  otherwise  owners  and 
employees  would  be  at  the  mercy  of  bailees  who  would  rely 
upon  a  failure  to  perform  the  contract  as  a  complete  indemnity 
against  the  suit  of  the  bailors.  I  cannot  see  how,' '  he  says,  "  in 
the  absence  of  any  proof  as  to  the  manner  in  which  the  loss 
occurred,  the  plaintiff  can  do  more  than  rely  on  the  fact  of  the 
non-delivery  of  the  goods  as  evidence  of  the  want  of  ordinary  care 
on  the  part  of  the  carriers  or  their  agents."  In  Clark  v.  Spen- 
cer (10  Watts,  [Penn.,]  337)  the  question  came  again  before 
the  Courts  of  Pennsylvania.  The  defendant  proved  the  loss  of 
a  trunk,  to  recover  the  value  of  which  the  action  was  brought, 
but  his  witness  having  left  it  doubtful  whether  the  trunk  was 
stolen  or  delivered-to  a  wrong  person,  DALLAS,  C.  J.  told  the 
jury  that  under  the  circumstances  the  burden  of  proof  was  on 
the  defendant.  This  ruling  was  approved  upon  appeal,  and 
in  delivering  the  judgment  of  the  Court,  ROGERS,  J.,  adverted 
to  the  view  of  the  law  taken  by  Chancellor  WALWOKTH  in  Plait 
v.  Hibbard,  and  was  of  opinion  that  it  ought  to  be  the  rule, 
but  thought  from  the  cases  cited  at  the  bar,  that  it  was 
contrary  to  the  current  of  authority,  and  declared  the  rule  to 
be  that  "  where  a  loss  has  been  proved,  or  where  goods  are 
injured,  the  law  will  not  intend  negligence.  The  bailee  is  pre- 
sumed to  have  acted  according  to  his  trust  until  the  contrary 
is  shown.  But  to  throw  the  proof  of  negligence  on  the  bailee 
it  is  necessary  to  show,  by  clear  and  satisfactory  proof,  that  the 
goods  were  lost  and  the  manner  in  which  they  were  lost.  All  the 


NEW  YORK— DECEMBER,  1863.  353 

Arent  v.  Squire. 

bailor  has  to  do  in  the  first  instance  is  to  prove  the  contract 
and  the  delivery  of  the  goods,  and  thus  throw  the  burden 
of  proof  that  they  were  lost,  and  the  manner  in  which  they 
were  lost,  on  the  bailee,  of  which  we  have  the  right  to  require 
very  satisfactory  proof." 

The  only  point  of  difference  between  these  cases  would  seem 
to  be  whether  when  goods  stored  or  deposited  with  a  bailee  for 
hire  are  lost  or  injured,  it  is  incumbent  upon  the  bailee  to  show 
that  he  took  proper  care  of  them,  or  whether,  when  the  man- 
ner in  which  they  were  lost  or  injured  has  been  shown,  it  is  to 
be  presumed  that  he  did  his  duty  until  the  contrary  appears. 
I  confess,  I  think  the  point  of  difference  of  little  practical 
value,  as  the  question  upon  whom  is  the  onus,  may  depend 
upon  various  considerations,  such  as  the  nature  of  the  bail- 
ment, the  form  of  the  action,  or  the  stage  of  the  case  at  which 
the  question  arises.  "  The  chief  difficulty,"  says  Mr.  Bell  in 
his  Commentaries,  "in  such  cases,  lies  in  the  evidence." 
(1  Bell  Comm.,  454.) 

If  the  action  is  trover,  a  wrongful  conversion  of  the  property 
must  be  shown  to  maintain  it.  If  it  is  an  action  on  the  case 
for  negligence,  the  plaintiff  must  make  out  a  case,  of  negligence, 
as  that  is  the  gist  of  the  action  ;  but  a  bailee  for  hire  may  be 
sued  in  assumpsit  (Button  v.  Britton,  1 H.  B.,  298,  note  Cairns 
v.  bobbins,  1  Mees.  &  Wels.,  258,)  and  all  that  the  plaintiff 
would  have  to  show  in  assumpsit  would  be  the  non-performance 
of  the  contract,  to  cast  upon  the  bailee  the  onus  of  showing 
why  it  had  not  been  performed.  We  are  relieved  by  the  Code 
of  any  difficulty  that  might  arise  from  the  form  of  the  action,, 
as  we  have  now  but  one  course  of  procedure  whether  a  plain- 
tiff sues  for  the  non-performance  of  a  contract  or  for  injuries  to 
property,  and  all  that  is  necessary  is,  that  it  should  appear  by 
his  complaint,  that  he  has  a  cause  of  action  entitling  him  to 
either  legal  or  equitable  relief. 

An  examination  of  the  numerous  English  cases  upon  this 
subject,  leads  to  no  very  satisfactory  result  as  to  the  rule  or 
principle  to  be  extracted  from  them.  (Clay  v.  William,  1  H. 
Bl.,  298 ;  Harris  v.  Packwood^  3  Taunt.,  264 ;  Marsh  v.  Home, 
5  B  &  Cr.,  322  ;  Finucane  v.  Small,  1  Esp.  R.,  314 ;  Cailiff 
v.  Dangers,  1  Peake,  N.  P.  R.,  155  ;  Brind  v.  Dale,  8  C.  &  P. 
207  ;  Gilbert  v.  Dale,  5  A.  &  E.,  543 ;  Thomas  v.  Day,  4  Esp., 
23 


354  COURT  OF  COMMON  PLEAS.  * 

Arent  v.  Squire. 

R,  262  ;  Hodgson  v.  Fullcrton,  4  Taunt.,  787  ;  Cooper  v.  Barton 
3  Camp.,  5  note  ;  Clark  v.  Earnshaw,  1  Neil  Gow,  30  ;  Sida- 
ways  v.  Toddy  2  Starkie,  400  ;  Hatchwell  v.  CooTce,  6  Taunt., 
577  ;  Ross  v.  Johnson,  5  Burr.,  2825  ;  Forward  v.  Pittard,  1 
Term  R.,  33 ;  G-arside  v.  jTmitf.  ^y.  (70.,  4  id.,  581 ;  Mythar 
v.  <70o&?,  2  Stra.,  1099.) 

In  nearly  all  of  them,  the  way  in  which  the  loss  or  injury 
happened  was  either  shown  by  the  plaintiff  or  by  the  defend- 
ant, or  circumstances  were  shown  warranting  a  presumption 
as  to  the  manner  in  which  it  occurred,  and  as  the  cases  are  re- 
ported,   the  question  passed  upon  by  the  Court  would  seem 
generally   to   have   been   whether,  under   the   circumstances 
of  the  particular  case,  the  loss  or  injury  was  attributable  to  the 
defendant's  negligence  or  not.     It  would  not  repay  the  labor 
to  go  over  these  cases  in  detail,  and  I  shall  refer  only  to  those 
in  which  there  was  no  evidence  as  to  the  manner  of  the  loss. 
In  Finucane  v.  Small,  (1  Esp.  R,  318,)  which  was  an  action  on 
the  case,  the  plaintiff  left  a  trunk  with  the  defendant  to  be  kept 
for  a  reward,  and  when  it  was  returned  to  the  plaintiff,  the< 
whole  of  the  contents  were  gone.     Lord  KENYON  said  that  to 
suppert  such  an  action,  positive  negligence  must  be  proved, 
and  as  it  appeared  that  the  trunk  was  put  in  a  place  of  security, 
where  things  of  greater  value  were  kept,  he  nonsuited  the 
plaintiff.     In  Cooper  v.  Barton  (3  Camp.,  5,  note,)  which  was 
assumpsit,  the  defendant  hired  a  horse  of  the  plaintiff,  which 
was  returned  with  his  knees  broken  in  consequence  of  a  fall. 
It  was  held  that  this  was  not  sufficient  evidence  of  negligence, 
and  the  plaintiff  was  nonsuited.      These  were  nisi  prius  cases, 
and  in  respect  to  the  first  of  them,  it  may  be  said  that  there 
was  evidence  of  the  manner  in  which  the  trunk  was  kept,  and 
probably  sufficient  to  show  ordinary  diligence  in  such  a  case, 
and  in  respect  to  the  last,  that  it  did  not  follow  that  the  fall  of 
the  horse  and  the  consequent  injury,  was  necessarily  the  re- 
sult of  negligence  on  the  part  of  the  defendant. 

Cairnes  v.  Bobbins  <&  Mills,  (8  Mees.  &  Welsb.  258,  E.  T. 
1841,)  a  more  recent  case  than  any  of  the  foregoing,  was  the 
loss  of  a  package  from  a  warehouse.  The  action  was  assumpsit. 
It  was  averred  that  the  defendant,  for  a  reasonable  compensa- 
tion, promised  that  he  would  safely  and  securely  keep  a  pack- 


NE\V    FORK— DECEMBER,   1863.  355 

Arent  v.  Squire. 

age  of  the  plaintiff: — Breach,  that  through  the  carelessness, 
negligence,  and  improper  conduct  of  the  defendant,  the  pack- 
age was  wholly  lost  to  the  plaintiff.  Plea,  non  assumpserunt, 
and  that  it  was  not  lost  through  the  carelessness,  negligence  or 
improper  conduct  of  the  defendant.  The  package  had  been 
carried  by  the  defendants'  wagon'from  Lancashire  to  London, 
and  delivered  to  the  plaintiff,  who  sent  it  back  to  the  defend- 
ants' warehouse,  with  instructions  that  it  should  remain  there 
to  await  his  order,  and  the  report  merely  states  that  it  was 
lost  out  of  the  warehouse.  Upon  the  trial,  it  was  objected  that 
the  defendants  were  mere  gratuitous  bailees,  and  therefore 
liable  only  for  gross  negligence,  of  which  there  was  no  proof; 
but  it  was  held  by  all  the  Judges  that  they  were  liable  as 
warehousemen,  and  judgment  was  entered  against  them 
for  the  value  of  the  package.  In  a  later  case,  Rose  v. 
HiU,  (2  Man.  Gr.  &  Scott,  787,)  the  defendant  was  sued 
in  assumpsit  for  the  loss  of  a  portmanteau.  The  plaintiff 
hired  a  cab,  which  was  driven  by  the  defendant's  servant,  to 
convey  him  from  a  railroad  terminus,  and  a  portmanteau,  con- 
taining his  wearing  apparel,  was  lost  from  the  roof  of  the 
vehicle.  The  averment  in  the  declaration  was  that  the  defend- 
ant agreed  to  convey  the  plaintiff  and  his  luggage  safely  and 
securely  from  the  railroad  terminus  to  Bridge  street  in  London. 
A  learned  discussion  arose  in  this  case  upon  the  authorities  and 
precedents,  as  to  the  legal  import  of  the  words  "  safely  and  se- 
curely /"  whether  they  could  be  regarded  as  entering  into  the 
implied  obligations  of  the  defendant,  who  eeeins  not  to  have 
been  regarded  as  a  common  carrier,  but  as  responsible  only  for 
ordinary  diligence  ;  and  the  Court  were  of  opinion  that  they 
did.  That  the  obligations,  which  they  imported,  applied  to  all 
cases  of  bailment  for  hire,  regard  being  had  to  the  relative 
rights  and  duties  of  tho  parties,  and  the  defendant  was  held 
responsible  for  the  loss. 

The  rule  of  the  Roman  law,  as  I  deduce  it  from  Molitor,  a 
comparatively  recent  commentator  upon  the  law  of  obligations, 
is  this  :  If  the  bailment  is  gratuitous,  the  bailee  is  liable  only 
where  the  injury  was  intentional,  or  was  the  result  of  a  negli- 
gence such  as  men  do  not  ordinarily  commit,  or  whicli  was  not 
habitual  with  him  in  the  management  of  his  own  affairs,  but 


• 

356  COURT  OF  COMMOK  PLEAS. 

Arent  v.  Squire. 

where  the  bailee  undertakes  the  custody  of  a  thing  for  reward,  he 
is  held  to  the  care  of  a  very  diligent  person,  and  if  in  discharge 
of  his  obligation,  he  alleges  that  the  property  is  lost,  he  must 
prove  the  loss  and  that  it  was  not  imputable  to  him  ;  that  it  oc- 
curred through  some  fortuitous  circumstances  (un  cas  fortuit) 
which  it  is  for  him  to  explain  or  show.  (Les  Obligations  en 
Droit  Romain,  par  J.  P.  Molitor,  §§110, 117,  815,  193,  199, 
200,  205,  206,  20T,  211,  212,  213,  293,  Tom.,  1  Gand.,  1851.) 

A  bailment  for  hire  is  a  contract  in  which  the  bailor  agrees 
to  pay  an  adequate  recompense  for  the  safe  keeping  of  the 
thing  entrusted  to  the  custody  of  the  bailee,  and  the  bailee 
agrees  to  keep  it  and  restore  it  upon  the  request  of  the  latter 
in  the  same  condition  substantially  as  he  received  it,  unless  it 
should  be  impossible  to  do  so  by  reason  of  its  injury,  loss  or 
destruction  from  causes  for  which  he  is  not  responsible.  If 
the  restoration  of  it  to  the  owner  or  bailor  has  become  impos- 
sible from  any  cause,  it  lies  with  the  bailee  to  show  it,  for  it  is 
to  be  assumed  that  the  one  who  has  had  the  control  and 
custody  of  the  property  is  better  able  to  account  for  its  loss  or 
injury  than  the  one  who  has  confided  it  to  his  keeping.  If  a 
pipe  of  wine,  placed  upon  storage,  is  returned  to  the  owner 
half  empty,  or  if  goods  entrusted  to  a  warehouseman  who  is 
paid  for  his  care  and  trouble,  are  delivered  materially  damaged 
or  injured,  it  is  absurd  to  say  that  the  owner  must  bear  the 
loss  unless  he  can  show  how  it  occurred.  It  is  sufficient  for 
him  to  show  that  the  property  entrusted  to  the  safe  keeping 
of  the  warehouseman  had  not  been  restored  to  him  upon 
demand,  or  has  been  returned  injured  or  diminished  in 
quantity,  and  if  he  who  had  it  in  charge  can  give  no  explanation 
of  the  circumstance,  it  is  more  consonant  with  reason  and  good 
sense  to  hold  that  the  presumption  is  to  be  taken  against  him, 
than  to  dismiss  the  plain  tiff's  suit  upon  the  loose,  general  pre- 
sumption that  every  man  is  presumed  to  do  his  duty.  All 
persons  are  presumed  to  have  duly  discharged  any  duty 
imposed  upon  them  by  law,  (Best  on  Presumptions,  68,)  a  pre- 
sumption allowed  for  the  benefit  of  those  entrusted  with  the 
discharge  of  public  duties  as  well  as  for  those  interested  in  or 
affected  by  the  discharge  of  them  ;  but  whether  a  presumption 
of  this  nature  is  to  be  applied  to  private  persons  or  not, 
must  depend  upon  the  circumstances  of  the  particular  case. 


NEW  YORK— DECEMBER,  1863.  357 

Arent  v.  Squire. 

"  ISTo  one,"  says  Lord  TENDER-TON  in  Rex  v.  Burdit,  (4  B.  &  A., 
161,)  "  is  to  be  required  to  explain  or  contradict  until  enough 
has  been  proved  to  warrant  a  reasonable  and  just  conclusion 
against  him  in  the  absence  of  explanation  or  contradiction, 
and  in  drawing  an  inference  or  conclusion  from  facts  proved, 
regard  must  always  be  had  to  the  nature  of  the  particular  case 
and  the  facility  that  appears  to  be  afforded  either  of  explana- 
tion or  contradiction,"  and  to  apply  the  remark  of  this  eminent 
Judge  to  the  case  of  a  bailee  for  hire  who  returns  the  property 
committed  to  his  care  materially  injured,  or  who  fails  to  return 
all  that  was  entrusted  to  him,  without  any  explanation  as  to 
the  cause  of  the  injury  or  of  the  deficiency  in  the  quantity,  it 
is  a  more  legitimate  and  natural  inference  to  conclude  that 
there  was  a  want  of  proper  care  and  diligence,  than  to  presume 
that  it  was  exercised,  t  If  it  appear,  as  in  Garside  v.  Trent.  Nav. 
Co.,  4  J.  R.  581)  that  the  property  was  destroyed  by  a  conflagra- 
tion, or  was  embezzled  by  the  bailee's  servant  without  his  con- 
nivance or  knowledge,  as  in  Schmidt  v.  Blood,  (9  Wend.,  268  ;) 
or  was  injured  by  rat^,  though  many  cats  were  kept  in  the 
warehouse,  as  in  Caitiff  v.  Danvers,  (1  Peake,  N.  P.,  114,)  or 
the  warehouse  had  been  broken  open  by  thieves,  as  in  Plait 
v.  Hibbard,  supra ;  or  there  are  any  circumstances,  not  pro- 
ceeding from  the  bailee's  negligence,  which  raise  a  reasonable 
presumption  as  to  the  manner  in  which  the  loss  or  injury 
occurred,  the  bailee  is  exonerated.  But  these  are  matters 
which  the  plaintiff  should  not  be  expected  to  prove,  as  they 
are  peculiarly  within  the  knowledge  of  the  bailee,  and  should 
be  shown  by  him  in  discharge  of  his  obligation.  This  is  the 
rule  laid  down  by  Pothier,  where  property  is  taken  by  way  of 
pledge  or  security.  "  The  creditor,"  he  says,  "  is  bound  to  re- 
turn the  property  when  the  debt  is  acquitted,  unless  it  has 
been  lost  without  his  fault.  But  the  allegation  that  it  has 
been  lost  will  not  suffice  in  discharge  of  his  obligation.  It  is 
necefsary  for  him  to  prove  the  accident  which  caused  the 
loss,  and  that  he  could  not  prevent  it,"  (Ouvres  de  Pothier, 
Tome  6,  P.  253,  ed.,  Paris,  1829,Traitedu  Contrat  de  Nantisse- 
nient,  chap.  II.,  Art.  2,)  and  I  cannot  see  why  this  rule  is  not 
equally  applicable  to  a  warehouseman,  for  in  cases  of  pledge  or 
pawn  all  that  has  ever  been  required  since  the  days  of  Bracton, 
by  the  common  law  on  the  part  of  the  pawnee,  has  been  that 


35S  COURT  OF  COMMON  PLEAS. 

Arent  v.  Squire. 

which  is  required  of  a  warehouseman,  the  exercise  of  ordinary 
diligence.  (Bracton,  99  b.,  Coggs  v.  Bema/rd^  2  Ld.  Eaym.,  917, 
AndOiTObflkj  522.) 

The  rule  deduced  from  the  Roman  law  by  the  modern  com- 
mentators, for  neither  the  Institutes,  the  Pandects,  nor  the  Code 
touch  the  precise  question  under  consideration,  does  not  seem  to 
recognize  the  distinction  that  there  may  be  bailees  for  hire,  like 
warehousemen  or  wharfingers,  who  are  bound  only  to  ordinary 
diligence.  This  appears  to  have  been  first  taken  by  Lord  KEN- 
YON  in  Caitiff  v.  Danvers,  (1  Peake,  N.  P.,  155.)  The  dis- 
tinction which  he  drew  that  a  warehouseman  who  carries  on  the 
business  of  storing  property  for  hire,  does  not,  like  a  carrier, 
bind  himself  to  insure  the  safety  of  the  property  entrusted  to 
him,  but  simply  that  he  will  exercise  or^nary  diligence  in  its 
safe  keeping,  has  been  uniformly  acted  upon  since,  both 
in  this  country  and  in  England.  This  distinction  '  must 
be  kept  in  view  in  adopting  any  general  rule  ;  and  giving 
due  weight  to  it,  I  think  the  following  rale  may  be  laid 
down  without  directly  conflicting  with  the  authority  of  any 
adjudged  case,  either  in  this  country  or  in  England,  namely — 
that  with  the  exception  of  common  carriers  and  inn-keepers, 
who  are  held  to  extraordinary  diligence,  any  one  who  takes 
charge  of  property  for  hire,  is  bound  to  make  good  any  loss 
not  proceeding  from  the  inherent  nature  of  the  thing  itself, 
such  as  absorption,  deterioration,  or  like  cause,  unless  he  can 
show  that  it  occurred  under  circumstances  exonerating  him 
from  all  blame  ;  or,  if  he  cannot  do  that,  that  he  exercised  a 
degree  of  care  in  its  safe-keeping  that  would  presumptively 
repel  any  suspicion  of  the  loss  having  occurred  through  his 
negligence  or  dishonesty. 

Applying  this  rule  to  the  case  before  us,  I  think  that  it  was 
incumbent  upon  the  defendants  to  account  for  the  loss  of  the 
missing  gin,  or  purge  themselves  of  all  suspicion  in  the  prem- 
ises. They  proved  that  the  two  casks  were  stored  in  a  loft,  to 
which  nobody  had  access  but  themselves  and  their  employees. 
If  that  were  the  case,  they  should  have  gone  themselves  upon 
the  stand,  and  testified  that  they  had  no  knowledge  of  the 
manner  in  which  the  gin  had  been  .  extracted  from  the  casks, 
and  brought  their  employees  also  to  testify  that  they  knew  no- 


NEW  TOKK— DECEMBER,  1863.  359 

Arent  v.  Squire. 

thing  of  the  way  in  which  it  had  been  taken.  This  was  espe- 
cially requisite  on  their  part,  as  there  was  evidence  in  the  case 
from  which  it  was  fairly  inferable  that  the  two  pipes  had  been 
recoopered  An  their  loft,  but  by  whom,  or  for  what  purpose 
was  not  shown.  Instead  of  doing  this,  they  merely  showed 
that  the  two  pipes  were  stored  in  the  same  way  as  other  prop- 
erty in  their  loft — and  upon  this,  with  some  evidence  as  to  the 
trustworthiness  of  their  porter  and  clerks,  which  amounted  to 
nothing  more  than  the  opinion  of  their  ont-door  clerk,  and  evi- 
dence of  the  manner  in  which  the  two  casks  were  delivered 
from  their  warehouse,  they  rested  ;  relying  upon  the  legal 
objection  that  it  was  incumbent  upon  the  plaintiff  to  show 
that  the  loss  occurred  through  their  negligence,  or  upon  the 
presumption  that  the  gin  was  drawn  from  the  casks  after  they 
had  been  taken  from  their  warehouse.  Upon  this  point  the 
Justice  found  against  them,  and  upon  the  evidence  he  could 
not  well  have  found  otherwise,  for  the  plaintiff  <^id  what  the 
defendants  did  not,  he  repelled,  by  the  positive  evidence  of  all 
who  had  charge  of  the  casks,  any  presumption  of  the  gin  hav- 
ing been  %  extracted  from  them  from  the  time  they  were  deliv- 
ered to  his  cartman  until  the  loss  was  discovered. 

The.  case  furnishes  a  good  illustration  of  the  propriety  of  the 
rule  that  the  burden  should  be  on  the  bailee  of  showing  how 

o 

the  loss  or  injury  happened.  To  hold  otherwise,  would  be  to 
give  immunity  to  fraudulent,  negligent,  or  dishonest  bailees.  It 
would  enable  them  to  rely  on  the  legal  presumption  that  they 
did  their  duty,  trusting  to  the  difficulty  or  impossibility  of  the 
plaintiff's  establishing  that  the  loss  was  occasioned  by  their  neg- 
ligence or  dishonesty.  Without  meaning  to  impute  any  im- 
proper acts  or  motives  to  the  defendants  in  this  case,  it  is 
enough  to  say  that  the  obligation  w;is  upon  them  to  account 
for  the  loss  of  the  gin  ;  that  the  plaintiff  proved  all  that  he 
could  be  expected  to  prove  under  the  circumstances,  and  that 
sufficient  was  not  shown  on  their  part  to  exonerate  them  from 
liability. 

Judgment  affirmed. 


360  COURT   OF   COMMON  PLEAS. 


Riblet  v.  Wallis. 


GEOBGE  W.  RIBLET,  Assignee  of  Ellas  T.  Hicks,  v.  ALEXANDER 

H.  WALLIS,  Administrator,  with  the  witt  annexed  of 

Elizabeth  Larkin,  deceased. 

Where  a  married  woman  authorized  her  husband  to  contract  for  work  and  ma- 
terials for  a  dwelling  house  she  was  erecting  upon  her  separate  estate  and  for 
the  repairs  of  other  buildings  also  belonging  to  her  estate,  which  contract 
was  partially  executed  during  her  life,  and  was  completed  after  her  death, — 
Held,  that  her  husband,  to  whom  she  had  left  a  life  interest  in  her  estate 
after  the  payment  of  certain  legacies,  and  appointed  her  executor  with  power 
to  manage,  mortgage  or  sell  her  estate,  and  to  invest  the  proceeds  as  he 
should  deem  most  advantageous  for  those  interested,  was  not  liable  in  hia 
individual  capacity  for  what  was  done  under  the  contract  either  before  or  af- 
ter the  wife's  death,  that  he  was  answerable  only  in  his  representative  charac- 
ter as  her  executor,  and  having  died  without  paying  the  debt,  that  the  ad- 
ministrator of  the  estate  with  the  will  annexed  was  bound  to  pay  the  debt 
out  of  assets  in  his  hand. 

This  was  an  action  against  the  defendant  as  administrator 
with  the  will  annexed  of  Elizabeth  Larkin.  The  testatrix  by 
her  last  will  and  testament,  by  which  she  appointed  her 
husband,  Moses  Larkin,  her  executor,  after  devising  certain 
personal  estate,  devised  the  residue  of  her  estate,  real  and 
personal,  and  the  rents,  issues  and  profits  thereof,  to  her 
husband,  Moses  Larkin,  during  his  natural  life,  and  after  his 
death,  the  rest,  residue  and  remainder  to  her  children.  She 
further  authorized  and  empowered  her  husband  to  manage  and 
invest  the  residue  and  remainder  of  her  estate,  real  and  per- 
sonal, as  he  might  deem  most  for  the  interest  of  those  interested, 
and  at  any  time  at  his  discretion,  to  sell,  convey  and  mortgage 
the  same  or  any  part  of  it ;  to  reinvest  the  proceeds,  and  to 
change  and  alter  such  investments  at  his  pleasure,  and  that  if 
her  husband  should  at  any  time  pay  off  any  mortgage  upon 
any  part  of  her  estate,  or  expend  any  of  his  private  funds  upon 
the  improvement  of  any  part  of  it,  that  the  sum  so  expended 
should  be  a  charge  upon  her  estate,  and  should  be  repaid  to  him, 
and  that  he  might  retain  it  out  of  any  of  the  proceeds  of  the 
sale  of  any  paft  of  her  estate  that  might  be  made  by  him. 
The  testatrix,  about  six  months  before  her  death,  commenced 
the  construction  of  an  expensive  and  valuable  dwelling  house 


NEW  YORK— DECEMBER, '  1863.  361 

Riblet  v.  Wallis. 

upon  certain  land  at  Rockaway,  and  erected  a  coach  house 
with  stabling  and  harness  rooms  and  servants'  apartments. 
She  continued  the  construction  of  the  dwelling  house  until 
the  time  of  her  death  ;  was  frequently  at  the  premises  during 
the  erection  of  the  building,  and  directed  her  husband  and  the 
workmen  there  employed  in  regard  to  it,  and  authorized  her 
husband  to  procure  materials  for  and  to   employ  workmen 
upon  it.     Her  husband  in  her  life  time,  and  by  her  authority, 
employed  one  Harris  to  furnish  materials  and  perform  the 
plumbing  and  trimming  work  upon  this  dwelling  house,  and 
also  to  do  work  and  furnish  materials  in  the  repairing  of  certain 
other  premises  belonging  to  her  separate  estate  in  the  city  of 
New  York,   and  at  Centerville,  Long  Island.     At  the  time 
of  her  death  the  dwelling  house  at  Rockaway  was  nearly 
finished,  the  frame  was  up  and  enclosed,  and  the  windows  in, 
part  of  the  inside  work  only  remaining  to  be  completed,  and  Har- 
ris up  to  that  time  had  performed  work  upon   and  furnished 
materials  under  the  employment  referred  to.     Moses  Larkin 
qualified  as  executor  under  the  will,  and  went  on  and  finished 
the  building  at  Rockaway,  continuing  the   employment  of 
Harris  after  the  death  of  the  testatrix,  and  Harris  furnished 
materials,  and  performed  work  upon  the  premises  referred  to,  to 
the  amount  of  $1,916  16,  to  recover  which  the  action  is  brought. 
Larkin    died    before    he    completed    the    administration    of 
the  estate,   and  the  defendant  succeeded  to  the   administra- 
tion.   It  further  appeared  that  Harris  was  employed  by  Larkin 
without  anything  being  said  either  by  Larkin  or  by  Harris  that 
Larkin  was  acting  in  a  representative  character,  and  the  work 
and  materials  were  charged  to  him  individually  upon  Harris's 
books. 

Judgment  being  rendered  for  plaintiff,  the  defendant  ap- 
pealed. 

J.  S.  Lawrence,  for  the  appellant. 

I.  It  was  a  contract  between  the  plaintiff's  assignor  and  Moses 
Larkin,  for  which  he  was  liable  in  his  individual  capacity  to  E. 
T.  Harris,  and  there  was  no  evidence  that  the  liability  of 
Elizabeth  Larkin  or  her  estate  was  at  all  contemplated  at  the 
time  of  the  making  of  the  contracts,  or  either  of  them. 

IL  By  the  terms  of  the  will  he  was  to  be  repaid  any  sums 


362  COUET  OF  COMMON  PLEAS. 

Riblet  v.  Wallis. 

he  might  advance,  but  he  was  not  authorized  to  deal  with 
other  persons  so  as  to  create  any  claim  oh  their  part  against 
her  estate.  Moses  Larkin  was  tenant  for  life,  and  in  order  that 
he  might  enjoy  the  estate  more  beneficially  she  gave  to  him  as 
devisee  enlarged  powers,  and  protected  him  in  any  advances  he 
might  make. 

III.  The  general  power  to  manage  and  invest  the  estate  does 
not  imply  an  authority  to  make  contracts  to  bind  the  estate  to 
third  parties.     (L.)  There  is  nothing  in  the  meaning   of  the 
words  when  used  with  reference  to  an  estate  which  would  give 
any  such  authority.     They  only  confer  an  authority  to  invest 
such  portions  of  the  estate  as  may  come  into  the  husband's  hands 
in  the  course   of  its   management.      The  words  are  to  be 
construed  together.     (2.)  But  if  these  words  could  be  construed 
as  conferring  any  additional   authority,  then   their   effect  is 
restrained  by  the  subsequent  clause  in  the  devise,  which  speci- 
fies the  powers  of  Moses  Larkin.     1st — To  sell,  convey  and 
mortgage.     2nd — To  re-invest.     3d — To  repay  himself,  for  any 
advances,  out  of  the  proceeds  of  sale,  and  the  special  powers 
indicate   the  intention   of  the   testatrix.     If  so  extensive  a* 
authority  as  one  to  contract  debts,  had  been  intended,  it  would 
have  been  specified.    (Cruise  Digest,  Title,  Devise  38,  Sec.  38.) 

IV.  The  intent  of  the  testatrix  should  be   effectuated   in 
construing  this  will,  and  it  is  apparent,  from  the  whole  context, 
that  she  intended  that  her  husband  should,  during  his  tenancy 
for  life,  be  repaid  any  advances  he  might  see  fit  to  make,  out 
of  his  own  funds.    The  authority  was  given  to  him  in  enlarge- 
ment of  his  rights  and  privileges  as  a  life  tenant,  and  not  as 
executor. 

V.  By  the  terms  of  the  will,  Moses  Larkin  was  to  be  repaid 
his  advances  out  of  the  proceeds  of  any  sale  of  any  of  the  estate 
of  the  testatrix  he  might  make,  and  even  if  the  plaintiff  had 
any  claim  against  the  estate  of  the  testatrix,  by  virtue  of  the 
contract  with  Moses  Larkin,  he  could  not  maintain  this  action 
against  the  defendant  as  administrator,  with  the  will  annexed, 
for  the   defendant  does  not  succeed   to  the   special  powers 
conferred  upon  Moses  Larkin,  and  has  no  right  to  make  any 
sales.      The   complaint  should   have   been   framed  so   as   to 
authorize  the  appointment  of  a  trustee  to  carry  out  the  trusts. 
(Conklin  v.  Egerton,  21  Wendell,  430.) 


KEW  YOKE— DECEMBER,"  1863.  363 


Riblet  v.  Wallis. 


VI.  The  cause  of  action  proven  was  against  Moses  Larkin, 
and  not  against  the  estate  of  Elizabeth  ;  and  the  fact  that  the 
articles  furnished  by  E.  T.  Harris  became  part  of  the  estate 
"devised  by  Elizabeth,  does  not  authorize  the  conclusion  that  an 
implied  promise  arises  that  her  estate  or  her  representative 
should  pay  for  them. 

YIL  The  plaintiff  cannot  in  this  action  be  subrogated  to 
any  demand  that  the  representatives  of  Moses  Larkin  might 
have  against  the  estate  of  Elizabeth. 

YIII.  The  declaration  of  Elizabeth  that  it  was  her  house  does 
not  establish  the  fact  that  she  commenced  its  erection  ;  being 
a  femme  covert  she  had  no  authority  in  law  to  make  any  con- 
tract, and  could  not  make  any  declaration  to  bind  her  or  her 
estate. 

D.  JE/vans,  for  respondent. 

I.  The  will  authorized  and  empowered  the  executor  to  bind 
the  estate  he  represented  for  any  and  all  improvements  he  saw 
fit  to  make  on  the  premises  in  question :  it  was  within  the  scope 
of  the  power  given  him  by  the  will  to  contract  debts  in  behalf 
of  the  estate  for  improving  it. 

II.  The  executor  having  authority  to  bind  the  estate  for  any 
improvements  he  might  make  to  the  premises,   and  having 
ordered  the  improvements,  and  the  respondents  having  made 
them,  the  Court  will  necessarily  adjudge  them  to  have  been 
made  for  and  on  the  credit  of  the  estate. 

III.  There  was  no  occasion  for  Moses  Larkin  or  his  represent- 
atives being  a  party  to  any  suit,  as  the  respondents  had  no 
claim  against  him  personally. 

IV.  If  the  will  did  not  authorize  Moses  Larkin  to  bind  the 
estate  to  third  persons  directly  for  improvements,  then  Larkin 
was  personally  liable  for  the  improvements. 

V.  If  Moses  Larkin  then  expended  his  own  moneys,  which 
was  done  by  employing  the  respondents,  and  becoming  person- 
ally liable,  there  is  no  dispute  but  that  the  estate  is  liable  to 
him  for  the  improvements. 

VI.  But  if  Larkin  had  a  remedy  against  the  estate  for  the 
money,  inasmuch  as  Larkin  was  bound  to  pay  it  to  the  respond- 
ents, and  they  were  the  persons  equitably  and  ultimately  entitled 


364  COURT  OF  COMMON  PLEAS. 

Riblet  v.  Wallis. 

to  it,  equity  will  convert  Moses  Larkin  into  a  trustee  for  the 
respondents,  and  will  subrogate  them  to  all  the  rights  and 
remedies  that  Moses  Larkin  had  against  the  estate,  and  will 
compel  the  estate  to  pay  the  money  directly  to  the  respondents. 
(United  States  Equity  Digest,  vol.  II.,  Title,  Subrogation. 
United  States  Digest,  Supplement,  Title,  Surety,  subdivision 
11,  Letter  E,  Right  of  Subrogation.) 

"VII.  Larkin  was  not  in  this  aspect  a  necessary  party  to  the 
suit ;  the  person  entitled  to  receive  and  the  person  bound  to  pay 
the  money  are  in  Court,  which  is  sufficient,  and  if  any  other 
person  had  been  a  necessary  or  proper  party  to  the  action,  the 
question  should  have  been  raised  by  demurrer  or  answer. 
(Code,  §§  144,  147  and  148.  King  v.  Vanderlilt,  7  How.  Pr. 
Rep.,  385) 

BY  THE  COURT.* — DALY,  J. — Two  points  are  made  by  the 
defendant :  1.  That  the  engagement  entered  into  by  Larkin 
with  Harris  in  Mrs.  Larkin's  life  time  was  in  his  individual 
capacity ;  2.  That  he  had  no  authority  under  the  will  to  charge 
her  estate  for  the  work  performed  by  Harris  and  the  materials 
which  he  furnished  towards  the  erection  of  the  dwelling  honse 
and  in  the  repairs  of  the  other  buildings. 

As  respects  the  first  point  it  is  sufficient  to  say  that  as  the 
contract  was  for  repairs  and  improvement  upon  property 
forming  part  of  Mrs.  Larkin's  separate  estate,  the  presumption 
would  be  that  the  contract  was  made  on  her  behalf.  The  fact 
that  nothing  was  said  between  Larkin  and  Harris,  that  the 
former  was  acting  in  a  representative  character,  and  that  the 
work  and  materials  were  charged  to  Larkin  upon  Harris's 
books,  would  not  overcome  this  presumption.  It  would  pre- 
vail, unless  the  contrary  distinctly  appeared.  The  referee  has 
found  that  the  contract  during  Mrs.  Larkin's  life  time  was 
made  by  Larkin  by  his  wife's  authority  and  I  think  he  was 
warranted  in  so  finding.  Larkin  left  an  order  at  Harris's 
place  to  have  the  work  done  and  the  material  furnished,  and 
it  was  in  evidence  that  Mrs.  Larkin  was  seen  at  the  build- 
ing while  it  was  in  the  course  of  erection  and  directed  altera- 
tions to  be  made  in  the  work ;  that  Larkin  complained  that  the 

...  *  Nov.  Gen.  Term,  1856.    Present  INGRAHAM,  F.  J.,  DALY  and  BRADY  JJ. 


NEW    YORK— DECEMBER,   1863.  365 


Riblet  v.  Wallis. 


building  was  too  expensive,  and  that  she  replied  that  it  was 
her  own  house  and  that  she  would  have  it  rightly  done,  and 
completed  as  she  wanted  it.  This  was  certainly  sufficient  to 
warrant  the  referee  in  concluding  that  what  was  done 
for  the  •  improvement  and  benefit  of  her  property  was 
by  her  authority,  and  had  she  survived,  her  separate  estate 
could  have  been  charged  in  equity  for  the  payment  of  the 
debt.  (Owens  v.  Dickenson,  Craig  &  Philips,  48  ;  Field  v. 
Dawle,  4  Russ.,  112 ;  Macqueen  on  Husband  and  Wife,  330.) 
What  was  done  after  her  death,  was  but  carrying  out  and  com- 
pleting what  she  had  herself  begun,  and  there  can  be  no  other 
conclusion  under  the  evidence  but  that  Larkin  in  doing  what 
she  had  ordered  to  be  done,  and  which  was  partially'  executed 
during  her  life  time,  was  acting  as  the  representative  of  her 
estate,  and  not  in  -his  individual  capacity. 

The  provision  in  the  will  that  he  was  "  to  manage  her  estate  " 
as  he  might  deem  most  for  the  interest  of  those  interested, 
especially  in  its  connection  with  the  authority  given  to  him  to 
sell  or  mortgage  the  whole  or  any  part  of  it  in  his  discretion  j 
and  to  reinvest  the  proceeds  and  to  change  and  alter  such  rein- 
vestment at  his  pleasure,  indicates  very  clearly  that  it  was  the 
intention  of  the  testatrix  that  he  should  have  authority  to  do 
whatever  might  be  essential  to  the  preservation  and  benefit  of 
her  estate,  the  rents,  issues  and  profits  of  which  he  was  to 
enjoy  during  his  life,  and  the  completion  of  the  dwelling  house 
and  of  the  repairs  upon  the  other  building  were  acts  proper 
and  necessary  in  the  care  and  management  of  the  estate. 

Lord  Coke  declared  in  Quick  v.  Ludborrow,  (3  Bulst,  30) 
that  if  a  man  is  bound  to  build  a  house  for  another  by  a  cer- 
tain day,  and  he  dies  before  the  day,  his  executor  must  perform 
the  contract,  from  which  it  equally  follows  that  if  a  man  employ 
another  to  build  a  house  for  him  and  he  dies  before  the  house 
is  finished,  his  executor  is  liable  for  the  fulfillment  of  the 
testator's  part  of  the  contract.  (Siboni  v.  Kirkman,  1  Mees.  & 
W.  423 ;  Marshal  v.  Broadhurst,  1  Cromp.,  &  Jer.,  403 ; 
Wentworth  v.  Cock,  10  A.  &  E.,  42 ;  2  Williams  on  Executors, 
1463.)  Larkin  therefore  would  have  been  liable  to  Harris  as 
executor  if  Harris  had  not  been  allowed  to  go  on  and  com- 
plete the  house,  which  was  partially  erected  when  the  testatrix 
died,  as  well  as  to  complete  the  repairing  of  the  other  building. 


366  COURT  OF  COMMON  PLEAS. 

j  Hauterman  v.  Bock. 

>  , 

As  executor  therefore  it  was  proper  for  him  to  allow  Harris  to 
finish  what  he  had  begun  in  the  testatrix's  life  time,  and  he 
would  have  had  the  right  to  pay  Harris  out  of  the  per- 
sonal estate  in  his  hand,  and  as  Larkin  died  before  Harris 
was  paid,  the  defendant,  who  has  succeeded  to  the  admin- 
istration of  the  estate,  is  liable  in  his  representative  charac- 
ter to  Harris'  assignor.  I  cannot  see  that  it  makes  any 
difference  in  this  respect  that  Larkin  had  a  life  interest 
in  the  estate  of  which  the  dwelling  house  and  the  other 
buildings  formed  a  part.  The  completion  of  the  unfinished 
building  and  the  repairs  were  beneficial  to  the  whole  estate, 
and  as  he  did  not  order  the  erection  of  the  building  or  the 
repairs,  but  simply  finished  what  the  testatrix  had  begun  in 
her  life  time,  he  was  not  personally  liable  to  the  builder  for 
what  had  been  done  after  her  death,  but  was  answerable  in  his 
representative  character,  as  executor,  upon  the  whole  contract, 
as  well  for  what  was  done  after  as  before  her  death. 

Judgment  affirmed. 


HAUTERMAN  &  YAN  LATJDEGAM  v.  FERDINAND  BOCK,  impleaded 
with  FERDINAND  HARTOG  and  MAURICE  YALKENHUYSEN. 

The  right  of  a  shipper  to  revoke  a  consignment  after  the  shipment  has  been 
made,  and  a  bill  of  lading  signed,  by  which  the  goods  are  deliverable  to  a 
consignee  by  name,  but  before  the  bill  of  lading  is  delivered  to  the  con- 
signee, cannot  be  questioned  either  on  principle  or  authority. 

Until  the  bill  of  lading  is  parted  with,  no  title  to  the  property  passes  from  the 
owner  or  shipper,  nor  does  any  right  to  the  possession  or  ownership  of  the 
goods  vest  in  the  consignee. 

The  production  of  the  bills  of  lading  by  plaintiffs,  the  possession  of  which  they 
had  never  parted  with,  proves  conclusively  that  they  were  the  shippers  and 
owners.  The  bill  is  regarded  as  a  muniment  of  title  to  the  property  de- 
scribed in  it. 

Goods  in  public  store  awaiting  the  completion  of  their  entry  at  the  Custom 
House  by  the  payment  of  the  duties,  are  to  be  deemed  still  in  trarmtu. 


NEW  TOEK— DECEMBEK,  1859.  367 


Hauterman  v.  Bock. 


APPEAL  by  the  defendants  from  a  judgment  at  Trial  Term. 
The  case  was  tried  before  Daly,  First  Judge. 

On  the  trial  it  appeared  that  the  plaintiffs  shipped  at 
Antwerp,  in  Belgium,  on  board  the  steamer  Belgique, 
nineteen  cases  of  segars,  taking  from  the  master  of  the 
vessel  bills  of  lading,  making  the  segars  deliverable  to  the  de- 
fendants, Hartog  &  Yalkenhuysen,  at  New  York,  to  which 
port  the  steamer  was  bound.  Before  her  arrival,  and  on  June 
5,  1857,  Hartog  &  Yalkenhuysen  failed,  and  made  an  assign- 
ment for  the  benefit  of  their  creditors  to  the  defendant  Bock. 
The  bills  of  lading  were  never  transmitted  to,  and  never  came 
to  the  possession  of  either  of  the  defendants,  but  the  segars  on 
their  arrival  were  sent  by  the  officers  of  the  Customs  to  the 
public  store,  and  the  defendant  Bock  claiming  their  possession 
under  the  assignment,  the  plaintiffs  brought  this  action  for  the 
purpose  of  having  themselves  declared  the  sole  owners  of  and 
entitled  to  the  segars,  notwithstanding  such  claim. 

At  the  trial,  the  bills  of  lading  being  still  in  the  plaintiffs ' 
possession  were  by  them  produced  and  put  in  evidence,  and 
they  showed  in  addition  that  a  notice  claiming  that  the  segars 
had  been  stopped  by  them  in  transitu,  was  served  on* the 
Collector  of  the  Port,  and  also  upon  the  captain  and  agent  of 
the  steamer,  prior  to  the  commencement  of  this  suit. 

Upon  these  facts,  judgment  was  given  at  the  Special  Term 
declaring  the  plaintiffs  to  be  the  owners  and  entitled  to  the 
immediate  possession  of  the  segars,  and  that  they  had  a  right 
to  stop  the  same  in  transitu. 

H.  C.  Van  Vorstj  for  appellant. 

I.  The  right  of  stoppage  in  transitu  exists  only  between 
vendor  and  vendee,  or  between  persons  standing  substantially 
in  that  -relation.  It  is  only  where  the  consignor  is  virtually 
the  vendor  that  he  may  exercise  the  right.  (2  Kent's  Comm., 
702;  1  Parsons  on  Contr.,  481.)  (1.)  Consignors  are  not 
necessarily  owners,  and  proof  of  the  former  relation  is  not 
proof  of  the  latter.  In  this  case  the  bills  of  lading  express  an 
unqualified  consignment ;  and  the  legal  presumption  is,  that 
the  consignees  are  the  owners.  (2.)  It  was  for  the  plaintiffs  to 
give  evidence  to  rebut  this  legal  presumption.  (Everett  v. 


'  368     ,  CO  [JET  OF  COMMON  PLEAS. 

Hauterman  v.  Bock. 

Saltus,  15  Wend.,  474,  20  Wend.,  267  ;    Angell  on  Com.  Car,, 
§  497,  2d  Ed. ;  Price  v.  Powell,  3  N.  Y.,  322.) 

II,  The  right   of  stoppage  in  transitu,  exists  only  where 
goods  have  been  sold  upon  credit.    (2  Kent's  Com.,  702,  and 
cases  there  cited.) 

III.  The  notice  of  stoppage  in  transitu  must  be  made  by  the 
agent,  general  or  special,  of  the  owner,  or  if  made  by  a  stranger, 
there  must  be  a  subsequent  ratification  thereof  on  the  part  of 
the  vendor.     (1  Parsons  on  Contr.,  478.) 

Charles  L.  Spilthorn  and  John  B.  Fogarty,  for  respondents. 

I.  The  shippers  or  consignors  of  goods  have  the  right  previous 
to  delivery,  of  stoppage  in  transitu  on  the  happening  of  the 
failure  or  insolvency  of  consignees.     (Abbott  on  Shipping,  Ed. 
Lond.  1844,  335,  511;   Flanders  on  Shipping,  464,466,519; 
Dows  v.  Cobl,  12  Barb.,  310,  316.)    (1.)  The  delivery  to  the  . 
consignee  is  not  complete  while  the  goods  are  in  the  Custom 
House  before  payment  of  the  duties,  or  until  they  are  actually 
in  fhe  possession,  store  or  place  of  deposit  of  the  consignees. 
(Flanders,  528,  529  ;  Belgian  Code  of  Commerce,  Article  568 ; 
Abbott,  513,  521.)      (2.)  The  consignors  or  shippers  are  pre- 
sumed prima  facie  to  be  the  owners  of  goods  consigned  by 
them.     (Flanders,  464 ;  Abbott,  321.)     (3.)  The  bill  of  lading 
is  conclusive  proof  that  the  respondents  were  the  shippers, 
and  is  presumptive  proof  that   they  were  the  owners  and 
consignors.     (Abbott,  328 ;  Flanders,  450,  456.) 

II.  The  exercise  of  the  right  of  stoppage  in  transitu  by  the 
respondents  so  far  as'  was  then  possible,  is  proved  by  the 
service  of  notice  thereof  on  the  consignee,  the  master  of  the 
vessel  and  the  Collector  of  the  Port.     (1%)  The  respondents 
could  not  have  then  exercised  their  rights  in  any  other  manner. 
(2,)  It  is  sufficient  if  the  party  having  the  right  to  stop  goods  in 
transitu,  take  such  steps  as  evince  his  intention  to  do  so ;  the 
law  will  not  require  impossibilities.     (Abbott,  528  ;  Flanders, 
541.)     (3.)  The  sale  on  credit  is  to  be  presumed  until  payment 

•  is  shown ;    the  onus  prolandi  is  on  the  appellants.    The  re- 
spondents cannot  be  required  to  prove  a  negative. 


NEW  YOKK— DECEMBER,  1859.  369 

Hauterman  v.  Bock. 

BY  THE  COURT. — HILTON,  J. — This  judgment  was  clearly 
right.  The  defendants  failed  to  show  any  title  whatever 
'to  the  segars,  while  on  the  other  hand  the  plaintiffs 
proved  conclusively  by  the  production  of  the  bills  of  lading, 
the  possession  of  which  they  had  never  parted  with, 
that  they  were  the  shippers  and  owners  of  the  property 
claimed.  The  right  of  a  shipper  to  revoke  a  consignment, 
after  the  shipment  has  been  made  and  a  bill  of  lading  making 
the  goods  deliverable  to  a  consignee  by  name  has  been  signed, 
and  before  the  bill  of  lading  is  delivered  to  the  consignee,  can- 
not be  questioned  either  on  principle  or  authority,  because, 
until  the  bill  of  lading  is  parted  with,  no  title  to  the  property, 
nor  any  right  to  the  possession  or  ownership,  passes  from  the 
owner  or  shipper.  (Abbott  on  Shipping,  [7  Am.  ed.]  433.) 

By  inserting  the  names  of  the  defendants  as  consignees,  they 
derived  no  property  in  the  segars  or  title  or  interest  in  them 
nor  any  right  to  their  possession,  until  effect  was  given  to  the 
act  by  delivery  to  them  of  the  bills  of  lading,  by  the  plain- 
tiffs or  some  one  on  their  behalf,  and  by  their  authority.  The 
plaintiffs  certainly  had  the  right  to  direct  the  consignment,  and 
might  have  named  the  defendants  as  consignees  in  anticipation 
of  making  some  intended  negotiation  respecting  the  segars ; 
but  whether  this  be  so  or  not  it  is  manifest  that  they  never  car- 
ried into  effect  their  intent  at  the  time  of  the  shipment,  by 
delivering  or  transmitting  the  bills  of  lading  to  the  defendants. 
(Lickbarrow  v.  Mason,  2  Term  R.,  71 ;  Hibbert  v.  Carter,  1  Id. 
747 ;  Buffington  v.  Curtis,  15  Mass.,  526 ;  Low  v.  Wolf,  8 
Pick.  301 ;  Allen  v.  Williams,  12  Id.  297.)  It  is  frequently  the 
case  that  the  name  of  the  consignee  is  left  blank  in  the  bill, 
and  it  would  be  absurd  to  say  when  goods  are  thus  shipped  that 
the  mere  insertion  of  a  name  in  the  blank  thus  left  would 
divest  the  owner  of  his  title  and  control  over  them. 

By  the  law  merchant  the  bill  is  regarded  as  a  muniment  of 
title  to  the  property  described  in  it,  (1  Parsons  on  Maritime 
Law,  358,)  and  when  it  is  in  the  possession  of  the  consignee  he 
is  presumed  to  be  the  owner,  (Everett  v.  Saltus,  15  Wend., 
474 ;  affirmed  20  Wend/  267,)  but  no  such  presumption  in  favor 
of  the  consignee  attaches  to  a  bill  found  in  the  possession  of 
the  shipper.  (Ablott  on  Shipping,  [7  Am.  Ed.]  435,  609,  654.) 
24 


370  COURT    OF    COMMON    PLEAS. 

Hauterman  v.  Bock. 

Upon  these  views  it  is  unnecessary  to  inquire  whether  the 
notice  referred  to  was  sufficient  to  predicate  the  claim  of  the 
plaintiffs  to  stop  the  goods.  But  in  any  aspect,  it  seems  to  me 
the  motive  would  not  be  a  matter  for  material  consideration, 
as  it  appeared  at  the  trial  that  the  goods  had  not  up  to  that 
time  come  to  the  actual  or  constructive  possession  of  the  de- 
fendants. As  is  said  by  Chancellor  Walworth  in  Mottratn  v. 
Heyer,  (5  Denio,  631 ) :  "  The  removal  of  the  goods  from  the 
"vessel  to  the  public  store  by  the  Custom  House  Officers 
"  until  the  consignee  should  entitle  the  owners  to  claim  the 
"  possession  and  disposition  of  the  goods  by  completing  their 
"  entry  by  the  payment  of  the  duties,  was  merely  substituting 
"  the  public  store  in  the  place  of  the  vessel  as  a  place  of  deposit 
"  in  the  transmission  of  the  goods  to  their  place  of  destina- 
"  tion." 

Here  there  was  no  evidence  that  the  defendants  had  ever 
entered  the  goods  at  the  Custom  House,  or  paid  any  duties 
upon  them.  Therefore  the  public  store  was  to  be  regarded  as  a 
place  of  deposit  connected  with  the  transmission,  and  it  is  well 
settled  that  as  to  goods  thus  deposited  the  right  of  a  con- 
signor to  stop  in  transitu  attaches.  (Mottram  v.  Heyer,  supra., 
Buckley  v.  fumiss,  15  Wend.  137 ;  Cornell  v.  Hitchcock,  23 
Id.  611 ;  Abbott  on  Shipping  [7  Am.  Ed.]  664 ;  Northey  v. 
field,  2  Esp.,  K  P.  C.  613  ;  1.  Parson's  Maritime  Law.  352.) 
The  consignee  having  no  right  to  the  goods  until  he  pays  the 
duties,  it  cannot  be  said  when  such  payment  has  not  been 
made,  that  he  has  ever  acquired  either  actual  or  constructive 
possession  of  them. 

Judgment  affirmed. 


NEW  TOKK— JULY,  1859.  371 


Bedford  v.  Terhune. 


GUNNING  S.  BEDFORD  v.  HENET  TEEHUNE  and  another. 

An  action  for  use  and  occupation  of  premises  cannot  be  maintained  against  a 
party  in  occupation  when  it  appears  that  there  is  a  lease  of  the  premises 
outstanding  in  a  third  person. 

Where  a  lease  is  outstanding,  and  a  party  other  than  the  lessee  is  in  posses- 
sion, it  is  presumed  that  he  is  the  assignee  of  the  lease,  unless  it  is  shown 
that  he  holds  under  a  demise  from  the  lessee ;  and  as  assignee  he  is  not  lia- 
ble in  an  action  for  use  and  occupation,  as  his  liability  is  founded  upon 
privity  of  estate,  and  the  action  must  be  upon  the  lease. 

A  surrender  of  the  lease  before  the  expiration  of  the  term,  and  that  the  party 
in  occupation  afterwards  held  under  a  distinct  and  independent  agreement 
with  the  lessor,  may  however  be  implied  from  circumstances. 

The  fact  that  the  lessee  had  failed,  that  the  defendant  succeeded  to  the  same 
business  which  the  lessee  had  previously  carried  on  in  the  same  premises ; 
that  when  the  lessor  was  advised  of  these  facts,  that  the  defendants  gave 
him  their  assurance  that  he  need  feel  no  concern  for  his  rent,  that  they  con- 
tinued "thereafter  to  pay  the  rent  to  him  and  not  to  the  lessee,  and  that  they 
applied  to  hire  the  premises  from  the  lessor  for  another  year,  telling  him 
they  were  among  his  best  tenants,  and  had  always  paid  their  rent  punctual- 
ly— Held,  sufficient  to  warrant  a  jury  in  finding  in  an  action  for  use  and  oc- 
cupation, that  there  was  a  change  of  tenancy  by  the  consent  of  all  parties. 

APPEAL  by  defendants  from  a  judgment  of  the  Marine  Conrt 
at  General  Term. 

The  plaintiff,  as  owner  of  certain  premises,  brought  an  ac- 
tion for  their  use  and  occupation,  against  the  defendants  as  his 
tenants.  The  defendants  denied  that  they  ever  occupied  the 
premises  as  tenants  of  the  plaintiff,  and  it  appeared  on  the  trial 
that  on  or  about  the  1st  day  of  August,  1855,  plaintiff  leased 
the  premises  mentioned  in  the  complaint  to  the  firm  of  E.  &  A. 
Ingraham  &  Co.,  for  the  term  of  two  years  and  nine  months, 
from  the  first  day  of  August,  1855.  The  defendants  claimed 
that  they  hired,  used,  and  occupied  the  premises  solely  as  the 
/tenants  of  said  firm  of  E.  &  A.  Ingraham  &  Co.,  and  of  no 
other  person  whomsoever,  and  that  the  plaintiff  had  never  re- 
cognized the  defendants  as  his  tenants,  or  in  any  manner  ac- 
cepted a  surrender  of  the  lease  of  said  premises  to  said  E.  & 
A.  In  grah  -m  &  Co. 


372  COURT  OF  COMMON  PLEAS. 

Bedford  v.  Terhune. 

It  appeared  that  Ingraham  &  Co.  failed  before  the  expira- 
tion of  the  lease,  and  the  plaintiff  then  called  at  the  premises, 
and  the  defendants,  who  were  in  occupation,  told  him  that  he 
need  not  fear  or  be  concerned  about  the  rent  ;  that  they  in- 
tended to  occupy  the  store  for  the  same,  business.  The  de- 
fendants did  continue  to  occupy  the  store,  and  paid  the  rent, 
requiring  receipts  therefor  in  the  following  form  — 


YOEK,  March  2,  1858. 

"  Received  of  Terhune  &  Edwards,  for  account  of  E.  &  A. 
Ingraham  &  Co.,  $450  for  one  quarter's  rent,  due  1st  day  of 
February,  1858.  G.  S.  BEDFORD, 

"Per  Peter  A.  H.  Jackson,  Agt." 

The  plaintiff's  agent  had  a  conversation  with  the  defendants 
in  March  in  regard  to  hiring  the  premises  for  another  year, 
when  the  defendants  said  they  ought  to  have  them  for  the  year 
following,  as  they  were  among  the  plaintiff's  best  tenants,  and 
had  always  paid  punctually. 

The  defendant's  counsel  moved  to  dismiss  the  complaint,  on 
the  grounds  (1)  that  there  was  no  contract  between  plaintiff 
and  defendants  ;  (2)  that  nothing  had  been  shown  by  which  the 
relation  of  landlord  and  tenant  could  be  inferred  ;  and  (3)  that 
any  presumption  arising  from  the  occupation  of  the  premises 
was  rebutted  by  proof  of  hiring.  The  Court  refused  to  dismiss, 
and  charged  the  jury  as  follows  : 

"  If  the  jury  believe  the  parties  made  the  agreement  as 
sworn  to  by  the  witness,  and  entered  upon  it  at  the  time  it 
was  made,  and  carried  it  out  up  to  this  last  quarter  by  the 
one  party  paying  the  rent  every  quarter,  and  occupying  the 
premises,  and  the  other  party  receiving  the  rent  each  quarter, 
then  I  charge  you  that  in  law  the  defendants  are  liable  for  this 
rent.  But  if  you  believe  that  no  such  agreement  or  under- 
standing was  made  or  had,  then  the  defendants  are  not  liable." 

The  jury  found  for  the  plaintiff.  The  General  Term  of  the 
Marine  Court  affirmed  the  judgment,  and  the  defendants  ap- 
pealed to  this  Court. 

Albert  Mathews,  for  appellants. 

Reynolds  &  Van  Schaick,  for  respondent. 


NEW  YORK— JULY,  1859.  373 

Bedford  v.  Terhune. 

BY  THE  COURT. — DALY,  F.  J. — The  action  was  for  use  and 
occupation  ;  the  plaintiff  averring  that  the  defendants  occupied 
the  premises  as  his  tenants,  and  the  defendants  answering  that 
they  hired  and  occupied  them  as  tenants  of  E.  A.  Ingraham  & 
Co.  Upon  the  trial.it  was  shown  that  the  plaintiff  demised 
the  premises  by  a  written  lease  to  E.  A.  Ingraham  &  Co.  for 
two  years  and  nine  months  from  the  1st  of  August,  1855,  and  a 
series  of  receipts  were  produced  signed  by  the  plaintiff's  agent, 
acknowledging  the  receipt  of  rent  from  the  defendants  for  the 
account  of  E.  A.  Ingraham  &  Co.,  extending  from  the  1st  of 
May,  1855,  to  the  2d  of  March,  1858.  The  action  was  for  the 
quarter's  rent  from  1st  of  February  to  the  1st  of  May,  1858. 
The  plaintiff  having  heard  that  E.  A.  Ingraham  &  Co.  had 
failed,  went  to  the  premises  and  saw  the  defendants,  who  told 
him  that  he  need  not  fear  or  be  concerned  about  the  rent — that 
they  intended  to  occupy  the  store  for  the  same  business. 
"When  this  interview  took  place  did  not  appear,  but  the  de- 
fendants continued  to  occupy  the  premises  thereafter,  and  paid 
the  rent,  the  receipts  for  the  rent  being  written  according  to 
their  dictation.  In  March,  1858,  the  plaintiff's  agent  had  a 
conversation  with  them  about  hiring  the  premises  for  a  year 
afrer  the  1st  of  May,  1858,  when  they  said  that  they  ought  to 
have  them  for  the  following  year,  a»  they  were  among  the 
plaintiffs  lest  tenants  and  had  always  paid  punctually.  When 
the  rent  was  demanded  for  the  last  quarter,  the  defendants 
said  that  they  had  paid  money  enough  on  account  of  E.  A.  In- 
graham &  Co.,  and  should  pay  no  more;  that  E.  A.  Ingraham 
&  Co.  owed  them  largely.  Upon  this  state  of  facts,  the  Judge 
charged  the  jury  substantially,  that  if  the  defendants  made  the 
agreement  with  the  plaintiff  inferable  from  the  above  state  of 
facts,  and  carried  it  out  by  occupying  the  premises  and  paying 
the  rent  up  to  the  commencement  of  the  last  quarter,  the  plain- 
tiff receiving  the  rent  from  them  each  quarter,  that  the  defend- 
ants were  liable  to  the  plaintiffs  for  the  last  quarter's  rent ;  to 
which  instruction  the  defendants  excepted,  and  the  jury  found 
for  the  plaintiff.  The  defendants  also  asked,  for  a  dismissal  of 
the  complaint  upon  the  grounds  that  there  was  nothing  in  the 
case  from  which  the  relation  of  landlord  and  tenant  or  any 
contract  between  the  plaintiff  and  tha  defendant  could  be  in- 


374:  COUKT  OF  COMMON  PLEAS. 

Bedford  v.  Terhune. 

f erred ;  that  the  presumption  arising  from  occupation  was 
rebutted  by  the  proof  of  hiring.  The  application  was  denied. 
There  was  sufficient  in  the  case  to  submit  to  the  jury  the 
question,  whether  the  occupation  of  the  premises  by  the 
defendants  was  under  an  agreement  made  by  them  with  the 
plaintiff,  and  though  that  question  was  not  put  to  the  jury  as 
clearly  or  as  intelligently  as  it  might  have  been,  yet  it  is 
apparent  from  the  language  used  by  the  Judge  that  he  meant 
to  and  did,  in  effect,  leave  that  question  to  them. 

All  that  was  offered  with  a  view  of  showing  that  the  defend- 
ants occupied  as  under  tenants  of  E.  A.  Ingraham  &  Co.,  after 
the  failure  of  that  firm,  was  the  receipt  given  by  the  plaintiff's 
agent  under  the  defendants'  dictation,  acknowledging  the 
receipt  of  rent  for  account  of  E.  A.  Ingraham  &  Co.  This  was 
a  circumstance,  but  not  a  controlling  one.  It  was  to  be  weighed 
as  against  the  other  evidence,  and  left  to  the  j.ury  for  them  to 
determine  what  conclusion  was  to  be  arrived  at  from  the  whole 
of  the  evidence  taken  together,  and  a  question  of  fact  which 
upon  such  evidence  might  have  been  determined  either  way, 
was  one  in  respect  to  which  the  finding  of  a  jury  is  conclusive. 
The  fact  that  the  defendants  succeeded  to  the  business  of  E.  A. 
Jngraham  &  Co..  or  carried  on  a  similar  business  in  the  same 
premises  after  the  failure  of  that  firm,  that  at  the  outset  of 
their  occupation  or  when  the  plaintiff  was  first  advised  that 
they  meant  so  to  occupy  and  carry  on  the  same  business,  they 
gave  him  their  assurance  that  he  need  feel  no  concern  about 
his  rent ;  the  fact  that  they  paid  their  rent  not  to  E.  A.  Ingra- 
ham &  Co.,  but  to  the  plaintiff  as  long  as  they  continued  to  pay 
it,  and  that  they  wanted  to  hire  the  store  for  another  year, 
urging  as  a  reason  to  induce  the  plaintiff  to  let  it  to  them,  that 
they  were  among  his  best  tenants  and  had  always  paid  their 
rent  punctually,  were  circumstances  sufficient  to  support  a 
finding  by  the  jury  that  they  held  under  a  distinct  and  inde- 
pendent agreement  with  the  plaintiff,  and  not  as  tenants  under 
a  demise  from  E.  A.  Ingraham  &  Co.,  notwithstanding  the  form 
in  which  the  receipts  were  drawn. 

The  lease  to  E.  A.  Ingraham  &  Co.  embraced  the  period 
during  which  the  defendants  occupied,  and  where  a  lease  is 


NEW  YORK— JULY,  1859.  375 


Bedford  v.  Terhune. 


outstanding  and  a  party  other  than  the  lessee  is  in  possession, 
the  presumption  is  that  he  is  the  assignee  of  the  lease,  which 
may  be  overcome,  however,  by  showing  that  he  holds  under  a 
demise  from  the  lessee.  (Armstrong  v.  Wheeler,  9  Cow.,  88  ; 
Williams  v.  Woodward,  2  Wend.,  487 ;  Quackenboss  v.  Clark, 
12  Id.,  555.)  If  the  party  in  occupation  must  be  regarded  as 
the  assignee  of  the  lease,  the  landlord  cannot  sue  him  for  use 
and  occupation,  as  his  liability  to  the  landlord  for  the  rent  is 
founded  upon  privity  of  estate,  and  the  action  must  be  upon 
the  lease.  (McFarlan  v.  Watson,  3  Comst.,  286.)  If  there 
was  nothing  in  the  case  but  the  occupation  of  the  premises  by 
the  defendants,  they  would  be  regarded  as  assignees  of  the 
outstanding  term  demised  by  the  plaintiff  to  E.  A.  Ingraham 
&  Co.,  and  the  plaintiff  could  not  sustain  the  present  action 
for  use  and  occupation.  But  a  surrender  of  the  lease  with  the 
consent  of  the  landlord  before  the  expiration  of  the  term  may 
be  inferred  from  circumstances,  and  a  lease  by  the  landlord  to 
a  third  party  with  the  consent  of  the  former  tenant,  operates 
as  a  surrender  of  the  previous  lease  and  estops  the  landlord 
from  claiming  any  rent  thereafter  under  that  leaae.  (Schieffiin 
v.  Carpenter,  15  Wend.,  400;  Smith  v.  Nivw,  2  Barb.,  180.) 
In  this  case  there  was  evidence  to  warrant  the  conclusion  of  a 
change  of  tenancy  with  the  consent  of  all  parties,  and  the 
acceptance  of  the  defendants  by  the  plaintiff  as  original  tenants 
under  an  agreement  by  them  to  pay  rent  to  the  plaintiff  for  the 
use  and  occupation  of  the  premises,  which,  under  the  authorities, 
was  sufficient  to  entitle  him  to  maintain  this  action.  (Mat- 
thews v.  Sloan,  8  Taunt.,  270  ;  Drury  Lane  Company  v.  Chap- 
man, 1  Carr.  &  Kirwan,  14.) 

The  judgment  should  be  affirmed. 

HILTON,  J. — I  concur. 

BRADY,  J. — In  this  case  the  defendants  claimed  to  be  the 
tenants  of  E.  &  A.  Ingraham  &  Co.,  but  on  the  trial  no  evi- 
dence of  such  a  relation  was  given,  except  the  receipts  taken 
by  the  defendants  on  the  payment  of  rent  to  the  agent  of  the 
plaintiff,  and  in  which  the  amounts  .paid  were  stated  to  be  re- 


3T6  COURT  OF  COMMON  PLEAS. 

Bedford  v.  Terhune. 

ceived  for  account  of  E.  &  A.  Ingraham  &  Co.  Why  the 
moneys  were  paid  by  the  defendants  does  not  appear ;  whether 
as  agents,  attorney  in  fact  or  as  assignees  of  the  term,  is  not 
shown.  The  chief  feature  of  the  defendants'  defence  is  for  this 
reason  wanting.  The  receipts  for  the  reason  stated  are  vague 
and  unsatisfactory,  and  would  not  justify  the  inference  that  the 
money  paid  was  paid  by  the  defendants  as  under  tenants, 
more  particularly  when  they  said  after  the  failure  of  E.  &  A. 
Ingraham  &  Co.  that  they  intended  to  occupy  the  store  for 
the  same  business  carried  on  by  that  firm.  In  the  absence  of 
this  proof  there  is  no  evidence  showing  that  the  defendants 
are  liable  to  E.  &  A.  Ingraham  &  Co.  under  any  hiring  from 
them,  a  legal  conclusion  which  if  it  existed  would  in  my 
opinion,  require  in  this  case  the  application  of  other  legal  prin- 
ciples than  those  upon  which  it  must  be  decided.  The  plain- 
tiff finding  the  defendants  in1  possession  as  detailed  by  the 
witness  Jackson,  and  governed  by  the  details  of  the  interview 
which  then  took  place,  with  the  other  circumstances  developed, 
I  think  the  hiring  from  or  occupation  under  the  plaintiff  was 
a  question  of  fact  which  could  be  submitted  with  propriety  to 
the  jury  as  was  done  here.  I  do  not  design  to  add  anything 
on  this  branch  of  the  case  to  the  views  expressed  by  Judge 
Daly,  in  which  I  concur. 

I  think  the  judgment  should  be  affirmed. 


NEW- YORK— OCTOBER,  1860.  377 


Harriott  v.  N.  J.  R  R  &  T.  Co. 


REUBEN  F.  HARRIOTT  v.  THE  NEW  JERSEY  EAILROAD  AND 
TRANSPORTATION  COMPANY. 

Where  the  complaint  presents  a  prima  fade  case  of  jurisdiction,  and  the 
question  is  not  raised  by  the  issues,  but  the  plaintiff,  on  the  trial,  admits 
the  fact  which  shows  the  want  of  jurisdiction,  his  non-residence,  and  the 
complaint  is  dismissed  on  that  ground; — Held,  such  an  adjudication  of  the 
action  as  will  entitle  the  defendant  to  a  judgment  for  costs. 

The  rule  that  costs  will  not  be  allowed  on  the  dismissal  of  a  complaint  for 
want  of  jurisdiction,  applies  only  in  cases  where  the  want  of  jurisdiction 
appears  on  the  face  of  the  summons  or  complaint,  or  the  Court  is  called 
upon  to  adjudicate  the  question  on  plea  or  demurrer. 

(Reversing  the  decision  of  the  Special  Term  in  Harriott  v.  N.  J.  R.  B.  &.  T. 
Go.,  8  Abbotts'  Pr.  R,  284 ;  following  McMahon  v.  Mutual  Benefit  Ins.  Co., 
3  Bosw.,  644 ;  and  Gormly  v.  Mclntosh,  22  Barb.,  271.) 

APPEAL  by  the  plaintiff  from  an  order  at  Special  Term,  set- 
ting aside  two  judgments  for  costs  awarded  to  the  defendant. 

The  action  was  brought  to  recover  damages  against  the 
defendants,  a  foreign  corporation,  for  negligently  and  care- 
lessly killing  the  plaintiff's  horse  in  New  Jersey. 

The  plaintiff  was  a  non-resident,  but  this  fact  did  not  appear 
in  the  pleadings. 

After  issue  joined  the  defendants  obtained  an  order  to  com- 
pel plaintiff  to  file  security  for  costs. 

On  the  trial  of  the  cause,  the  plaintiff  admitting  that  he  was 
a  non-resident,  the  defendant  moved  to  dismiss  the  complaint 
on  the  ground  that  the  Court  had  no  jurisdiction.  The  Court 
(DALY,  F.  J.)  granted  the  motion,  and  judgment  was  ordered 
for  the  defendants.  The  plaintiff  appealed  from  this  judgment 
as  a  whole,  but  taking  no  exception  to  that  part  of  it  which 
allowed  costs.  On  the  appeal  the  judgment  was  affirmed,  and 
entered  up  with  the  additional  costs  of  appeal.  (The  opinion 
of  the  General  Term  on  appeal  will  be  found  reported  in  8 
Abbotts'  Pr.  R.,  284.) 

The  plaintiff  then  moved  to  set  aside  the  allowance  of  costs 
and  the  judgments  on  the  ground  that  the  Court  having  no 


378  COURT  OF  COMMON  PLEAS. 

Harriott  v.  N.  J.  R.  R  &  T.  Co. 

jurisdiction  of  the  subject  matter  of  the  suit,  could  not  award 
costs.  The  Court  at  Special  Term,  (HILTON  J.)  granted  the 
motion,  and  ordered  the  judgments  to  be  set  aside.  (The 
opinion  of  Judge  Hilton  is  reported  in  8  Abbotts'  Pr.  R.,  293.) 
From  this  order,  the  defendants  then  appealed  to  the  Gen- 
eral Term. 

Edgar  S.  Van  Winkle,  for  appellants. 
.James  Gerard  and  E.  Yenni,  for  respondents. 

BEADY  J. — The  defendants,  though  a  foreign  corporation 
could  be  sued  in  this  Court  by  a  resident  of  the  State,  for 
any  cause  of  action,  and-  by  a  plaintiff  not  a  resident  of  the 
State,  when  the  cause  of  action  arose  or  the  subject  of  the 
action  was  situate  within  this  State.  (Code,  §  427.)  The 
plaintiff  being  a  resident  of  New  Jersey,  sued  the  defendants 
in  this  Court  upon  a  cause  of  action  arising  in  New  Jersey, 
and  when  the  fact  of  his  residence  in  that  State  was  disclosed 
at  the  commencement  of  the  trial,  the  complaint  was  dismissed 
for  want  of  jurisdiction.  The  plaintiff  selected  the  forum,  and 
the  defendants  were  obliged  to  appear  and  defend,  it  not 
appearing  by  the  complaint  that  the  plaintiff  was  not  a  resi- 
dent of  this  State.  The  question  presented  by  these  facts  is 
whether  the  defendants  are  entitled  to  costs.  The  Superior 
Court  of  this  city  has  considered  and  determined  the  question 
in  favor  of  the  right,  and  for  reasons  which  are  satisfactory  to 
my  mind.  (McMahon  v. Mutual  Benefit  Life  Insurance  Co., 
3  Bosw.,  644.) 

The  case  of  Gormly  v.  Mclntosh,  (22  Barb.,  271,)  upon 
which  the  respondent  chiefly  relies,  differs  from  the  one  in 
hand.  The  want  of  jurisdiction  in  the  County  Court  was 
"  apparent  upon  the  face  of  the  summons  and  complaint,"  and 
the  rule  in  regard  to  costs  in  such  cases,  is  not  the  same  as 
that  which  governs  in  cases  where  the  want  of  jurisdiction  does 
not  appear.  Justice  SMITH,  in  his  opinion  in  that  case,  says 
"  the  want  of  jurisdiction  in  these  cases  of  the  subject  matter 
being  apparent  on  the  face  of  the  summons  and  complaint, 
the  County  Court  should  have  dismissed  the  suit  without 
costs,  in  conformity  with  the  rules  so  laid  down  by  Judge 
COWEN  in  Malone  v.  Clark,  (2  Hill,  657,)  and  it  follows  that 


NEW,  YOKE— OCTOBER,    1860.  379 


Harriott  v.  N.  J.  R  R  &  T.  Co. 


no  costs  can  be  recovered  by  the  appellants  in  the  County 
Court,  and  the  allowance  on  taxation  must  be  reversed.  This 
rule  in  respect  to  costs  cannot  apply  in  cases  where  the  want 
of  jurisdiction  does  not  appear  upon  the  face  of  the  proceedings, 
but  it  is  presented  by  plea  on  demurrer,  and  the  Court  is  called 
to  adjudicate  upon  the  question."  When  however  the  question 
is  presented  in  that  mode,  the  complaint  showing  a prima  facie 
case,  the  prevailing  party  is  entitled  to  costs.  Justice  SMITH 
cites  several  cases  in  support  of  the  doctrine  stated.  • 

The  complaint  in  this  action  presented  a  prima  facie  case 
of  jurisdiction,  and  the  Court  could  not  have  dismissed  the 
action  upon  the  complaint  alone.  The  defendants  by  answer- 
ing did  not  waive  the  objection  to  the  jurisdiction  (Code,  §  148) 
which  could  be  urged  upon  the  trial  in  the  nature  of  either 
plea  or  demurrer,  and  on  this  case  upon  proof  of  the  fact  that 
the  plaintiff  was  a  non-resident  of  this  State.  The  admission 
of  the  fact  mentioned  only  relieved  the  defendants  from  the 
necessity  of  proving  it,  but  when  admitted  it  became  necessary 
for  the  Court  to  adjudicate  upon  the  question,  and  costs  fpllowed 
as  already  shown.  If  the  defendants  had  set  up  by  plea  or 
answer  that  the  plaintiff  was  a  non-resident,  it  is  clear  on  the 
authority  of  Gormly  v.  Mclntosh,  and  cases  cited,  that  the 
defendants  would  be  entitled  to  costs,  and  as  they  were  not 
obliged  to  set  it  up,  but  could  prove  it  by  way  of  answer  or 
demurrer  at  the  trial,  the  result  must  be  the  same.  If  the 
plaintiff  had  not  admitted  the  fact,  he  could  have  gone  in  with 
his  proofs  and  compelled  the  defendants  to  prove  the  fact  of 
his  non-residence  in  support  of  their  objection  that  the  Court 
had  no  jurisdiction.  The  burden  of  proof  was  upon  them. 
This  case  is  therefore  to  all  intents  and  purposes,  an  adjudication 
upon  the  question  of  the  plaintiff's  residence.  The  plaintiff  is 
not  the  prevailing  party,  and  such  being  the  fact,  as  shown  by 
the  opinion  of  Justices  BOSWOKTH  and  WOODRUFF  in  McMahon 
v.  Mutual  Benefit  Life  Insurance  Co.,  supra,  the  defendants 
are  entitled  to  costs. 

I  think  the  order  of  the  Special  Term  should  be  reversed  with 
ten  dollars  costs. 

DALY,  F.  J.,  concurred. 
HILTON,  J.,  dissented. 


380  COURT  OF  COMMON  PLEAS. 


Greaton  v.  Smith. 


JOHN   W.    GREATON   v.    GEORGE   D.   SMITH    and   JOHN    B. 

McPHERSON. 

Where  a  tenant  remains  in  possession  after  the  expiration  of  his  term,  upon 
the  assurance  of  the  landlord  that  he  will  give  _  him  a  lease  for  ten  years  at  a 
stipulated  rent,  and  quits  the  premises  upon  the  landlord  refusing  to  do  so, 
there  is  no  implied  agreement  for  the  payment  of  rent  during  the  period  of 
occupation. 

There  must  be  some  act  of  the  parties  from  which  the  law  implies  an  agree- 
ment to  occupy  for  a  year,  to  create  a  yearly  tenancy,  and  unless  such  acts 
can  be  shown,  the  law  will  not  make  a  contract  for  them. 

The  occupant  paid  rent  for  the  first  quarter  at  the  rate  to  be  fixed  by 
the  promised  lease,  and  left  before  the  expiration  of  next  quarter  upon  the 
landlord  putting  up  a  bill  announcing  that  the  premises  were  to  let,  and  on 
his  refusing  to  execute  and  deliver  the  lease ; — Held,  the  occupant  was  not 
bound  to  pay  rent  for  the  portion  of  the  quarter  which  he  had  occupied. 
There  was  not,  in  such  a  case,  that  holding  over  which  will  create  a 
tenancy  from  year  to  year,  or  that  agreement  for  occupation  which  would  be 
valid  by  statute  until  the  1st  of  May  following, or  which  would  entitle  the  land 
lord  under  the  statute,  to  a  reasonable  satisfaction  for  use  and  occupation. 

Although  such  parol  agreement  was  void  by  the  statute  of  frauds,  the  plaintiff 
is  not  entitled  thereby  to  any  advantage.  The  law  will  leave  him  to  the 
consequences  of  an  act,  which,  if  injurious,  he  might  have  avoided. 

The  question  to  a  witness,  for  the  purpose  of  impeaching  his  credibility, 
whether  he  had  not  been  expelled  from  an  Odd  Fellows'  lodge ; — Held,  prop- 
erly excluded,  as  an  affirmative  answer  would  not  affect  the  credibility  of  the 
witness. 

An  offer  to  show  that  the  witness  had  been  convicted  and  imprisoned  for  gross 
intoxication  on  a  certain  day, — Held,  properly  excluded,  as  it  was  an  effort  to 
impeach  a  witness  by  proof  of  a  particular  offence. 

The  cross-examination  of  a  witness,  as  to  a  conversation  had  by  him,  must  be 
limited  to  that  particular  subject  of  the  conversation  which  was  brought  out 
on  the  direct  examination.  The  whole  conversation  cannot  be  given  on  the 
cross-examination. 

This  action  was  trie<}  before  DALY,  F.  J.,  and  a  jury. 

The  action  was  to  recover  rent  from  August  1,  1854,  to  May 
1, 1855,  of  premises  No.  23  Maiden  Lane.  The  defendants  set 
up  an  eviction. 

It  appeared  in  evidence  on  the  trial,  that  the  defendants  had 
been  joint  tenants  of  the  plaintiff  prior  to  May  1,  1854. 


NEW  YORK— MAT,  1860.  381 


Greaton  v.  Smith. 


Shortly  before  that  day,  they  made  a  parol  agreement  with 
the  plaintiff  by  which  it  was  agreed  that  defendants  should 
continue  in  possession  of  the  premises  under  a  lease,  for  ten 
years,  which  the  plaintiff  agreed  to  have  prepared.  The  de- 
fendants, under  such  agreement,  continued  in  possession  after 
May  1,  1854,  and  paid  rent  for  the  quarter  ending  August  1, 
1854.  The  plaintiff  delayed  giving  a  lease  until  before  the  1st 
of  November  ;  he  refused  to  give  any  lease,  and  refused  to  per- 
mit defendants  to  remain  in  the  premises  under  the  agreement. 

Plaintiff  put  a  bill  up  advertising  the  premises  to  let ;  and 
the  defendants  quit  and  surrendered  the  premises  on  the  last  of 
October. 

The  various  exceptions  taken  at  the  trial  are  fully  stated  in 
the  opinion  of  the  Court.  The  presiding  Judge  charged  the 
jury,  among  other  things : 

"  That  if  the  plaintiff  suffered  the  defendants  to  go  into  pos- 
session of  the  premises  under  a  verbal  agreement  that  they 
should  have  a  lease  for  ten  years,  and  then  refused  to  give 
them  such  a  lease  as  he  had  agreed  to  give,  they  were  justified 
in  abandoning  them  at  the  time  they  did,  and  are  not  liable  for 
any  rent  for  the  period  during  which  they  actually  occupied 
the  premises. 

"  That  if  the  plaintiff  delayed  offering  the  lease  until  just  be- 
fore the  defendants  left  the  premises,  and  they  refused,  and  the 
delay  was  occasioned  by  his  own  act,  then  the  defendants  were 
entitled  to  abandon  the  premises,  and  are  not  liable  for  any  rent 
from  the  time  they  occupied." 

The  jury  returned  a  verdict  in  favor  of  the  defendants ; 
whereupon  the  judge,  under  the  provisions  of  §  265  of  the  Code, 
directed  the  exceptions  taken  to  be  heard  in  the  first  instance  at 
a  General  Term,  and  the  entry  of  judgment  to  be  in  the  mean 
time  suspended. 

The  plaintiff  appealed  to  the  General  Term. 

Albert  Mathews,  for  appellants. 

I.  The  pleadings  admit,  and  the  evidence  establishes,  that  the 
defendants  held  over  by  permission  of  the  landlord,  and  paid 
rent  for  the  first  quarter,  and  agreed  to  pay  for  the  remaining 
three  quarters  at  the  rate  of  four  hundred  dollars  per  annum. 


3S2  COURT  OF  COMMON  PLEAS. 

Greaton  v.  Smith. 

(1.)  The  pleadings  conld  not  be  contradicted.  ( Wood  v.  Whit- 
ing, 21  Barb.,  190 ;  Miller  v.  Moore,  1  E.  D.  Smith,  739.  (2.) 
By  statute  there  was  a  lease  till  May  1st,  1855.  (1  Rev.  Stat., 
744,  §  1.)  (3.)  By  common  law  there  was  a  lease  from  year  to 
year ;  i.  «.,  May,  1854,  to  May,  1855.  (Right  v.  Darby,  1 
Term  R.,  862  ;  Jackson  v.  Salmon,  4:  Wend.,  327 ;  Webber  v. 
Sherman,  3  Hill,  517 ;  Conway  v.  Starkwether,  1  Denio  R., 
113;  Wiggin  v.  Woodruff,  11  Leg.  Obs.,  89;  Holsman  v. 
Abrams,  2  Duer's  Rep.,  446 ;  McDowall  v.  Simpson,  3  Watts, 
135.)  (4.)  By  statute  the  plaintiff  may  recover  reasonable  sat- 
isfaction for  the  year.  (1  Rev.  Stat.,  748,  §  26  ;  Peckham  v. 
Leary,  6  Duer,  492.)  (5.)  By  common  law  likewise.  (Eppes 
JExrs.  v.  Cole,  4  Henn.  &  Mumf.,  161.)  (6.)  The  landlord  alone 
had  an  option  to  terminate  the  tenancy  after  the  new  year  be- 
gan, and  the  tenants  remained  in  possession.  (Abeel  v.  Radr 
cliff,  15  Johns.,  505;  Anderson  v.  Prindle,  23  Wend.,  618; 
Sherwood  v.  Phillips,  13  Wend.,  479 ;  Jackson  v.  Salmon,  4 
Wend.,  327  ;  Rowan  v.  Lyttle,  11  Wend.,  620  ;  Webber  v.  Sher- 
man, 3  Hill,  547 ;  Conway  v.  Starkwether,  1  Denio,  113.) 

II.  The  evidence,  construed  most  adversely  to  the  plaintiff, 
proved  the  defendants  to  be  tenants  holding  over  after  the  ex- 
piration of  their  term,  under  a  parol  agreement  for  a  lease  for 
ten  years,  which,  was  void,  and  about  the  terms  of  which  the 
parties  could  not  agree.  Under  this  state  of  facts,  they  used 
and  occupied  the  premises  six  months,  and  paid  one  quarter's 
rent.  They  also  agreed  to  pay  the  remainder  of  the  annual 
rent,  and  acquiesced  in  being  treated  as  tenants  for  the  year. 
The  plaintiffs  were,  therefore,  entitled  to  recover.  (1.)  If  the 
agreement  had  been  valid,  and  the  parties  never  performed  it. 
still  the  defendants  would  have  been  liable  as  tenants  fo 
year.  (Doe  v.  Bell,  5  Term  Rep.,  471 ;  Clayton  v.  Blakely 
Term  R.,  3  ;  Schuyler  v.  Leggett,  2  Co  wen  R.,  660  ;  People  \ . 
Rickart,  8  Cowen,  226 ;  Little  v.  Martin,  3  Wend.,  219  ;  Hols- 
man  v.  Abr*ms,  2  Duer  R.,  435 ;  JBraythwaite  v.  Hitchcock,  10 
Mees  &  Wels.,  494  ;  Cox  v.  Bent,  5  Bing.,  185  ;  Thompson  v. 
Amey,  12  Adol.  &  Ell.,  476 ;  Mann  v.  Lovejoy,  1  Ryan  <fe 
Moody,  355  ;  Westmorland  v.  Smith,  1  Mann.  &  Ryl.,  137).  (2). 
The  agreement  to  lease  for  ten  years  being  void,  the  defend- 
ants were  liable  in  like  manner.  (Doe  v.  Bell,  5  Term  R.,  471 ; 


NEW  YORK— MAY,  1860.  383 

Greaton  v.  Smith. 

^Clayton  v.  Blakely,  8  Term  R.,  3 ;  Abeel  v.  Raddiff^  13  Johns., 
207 ;  Taggard  v.  Roosevelt,  %  E.  D.  Smith's  R.,  100  ;  Elliot  v. 
Rogers,  4  Esp.  R.,  59;  Vanderbilt  v.  Persse,  3  E.  D. 
Smith,  428.)  (3.)  The  tenant  is  none  the  less  liable,  although 
he  abandons  possession.  (  Westldke  v.  Degraw,  25  Wend.,  669  ; 
Little  v.  Martin,  '6  Wend.,  219.) 

Beebe,  Dean  &  Donohue,  for  respondents. 

I.  The  only  point  in  the  case  is  distinctly  stated  by  the  pre- 
siding judge  in  his  charge,  and  we  submit  that  his  construction 
is  the  only  one  that  can  be  put  on  the  statute.  (1  Rev.  Stat, 
744.)  (1 .)  "  Agreements,  &c.,  which  shall  not  particularly 
specify  the  duration  of  such  occupation,  shall  be  deemed  valid 
until  the  1st  of  May  next,  after  possession  under  such  agree- 
ment shall  commence."  (2.)  As  the  agreement  under  which 
the  defendants  occupied  these  premises  did  "particularly  specify 
the  duration,"  &c.,  this  statute  does  not  aid  the  plaintiff.  (3.) 
The  parties  having  made  an  express  agreement,  the  law  will 
not  imply  a  different  one.  ( Whiting  v.  Sutherland,  7  Mass., 
107.)  (4.)  The  plaintiff  having  availed  himself  of  the  defect 
in  the  agreement,  viz.,  that  it  was  by  parol,  no  action  can  be 
sustained  on  it,  or  for  its  breach.  (5.)  To  permit  the  plaintiff 
to  compel  defendants  to  pay  rent  for  one  year,  would  be  to  al- 
low him  to  take  advantage  of  his  own  wrong.  (6.)  This  is  en- 
tirely distinguishable  from  the  cases  where  a  party  goes  in  pos- 
session under  a  void  lease,  because  we  here  continued  in  pos- 
session under  an  agreement  for  a  valid  lease  in  writing. 

BY  THE  COUET. — BEADY,  J. — The  defendants  were  in  posses- 
sion of  the  premises  mentioned  in  the  complaint  as  the  tenants 
of  the  plaintiff,  down  to  the  1st  of  May,  1854.  Prior  to  that  day 
the  plaintiff  agreed  by  parol  to  give  the  defendants  a  lease  for 
ten  years  from  the  1st  of  May,  1854,  for  the  same  premises  at 
the  rental  of  $275  per  annum,  payable  quarterly,  on  the  usual 
quarter  days.  The  defendants  continued  in  possession  of  the 
premises  after  the  1st  of  May,  1854,  and  until  the  31st  of  Octo- 
ber following,  when  they  quit  them.  They  paid  the  quarter's 
rent  due  on  the  1st  of  August,  1854,  at  the  rate  of  $275  per 
annum.  The  plaintiff  refused  to  give  the  defendants  the  lease 


384  COURT  OF  COMMON  PLEAS. 

Greaton  v.  Smith. 

promised  by  him,  and  put  a  bill  on  the  house,  in  October  1854, 
containing  a  notice  that  the  premises  were  to  let,  or  that  some 
premises  were  to  let,  and,  on  application  to  him,  he  stated  that 
the  defendants'  apartments  were  to  let,  and  that  he  would  give 
possession  of  them  on  the  1st  of  November,  1854.  As  to  the 
fact  of  the  attempted  letting,  the  evidence  was  conflicting,  but 
the  jury  having  found  for  the  defendants,  we  must  intend 
that  that  issue  was  found  by  them  in  the  defendants'  favor. 
The  presiding  Judge  charged  the  jury  that,  if  the  plaintiff 
suffered  the  defendants  to  go  into  possession  of  the  premises 
under  a  verbal  agreement  that  they  should  have  a  lease  for  ten 
years,  and  then  refused  to  give  such  a  lease  as  he  had  agreed 
to  give,  the  defendants  were  justified  in  abandoning  them  at 
the  time  they  did,  and  were  not  liable  for  the  period  during 
which  they  occupied.  To  this  the  plaintiff  excepted,  but  if 
the  rule  thus  stated  was  correct,  then  the  application  for  a  new 
trial  must  be  denied.  It  must  be  "Borne  in  mind  that  this  was 
not  a  holding  over  after  the  expiration  of  the  defendants'  term 
merely,  and  without  any  new  agreement,  and  that  the  closing 
or  final  event  in  reference  to  the  lease  promised,  occurred  in 
October,  1854,  on  the  last  day  of  which  month  the  defendants 
left  the  premises.  The  continuance  of  the  defendants  in  pos- 
session being  under  an  agreement  for  a  lease,  there  was  no 
holding  over  within  the  meaning  of  the  common  law  or  of  our 
statute  upon  that  subject.  (1  Rev.  Stat.,  744,  §  1 ;  Conway  v. 
Starkweather,  1  Denio,  113 ;  Smith  v.  Stewart,  6  John.,  46 ; 
Bancroft  v.  War  dwell,  13  Id.,  489  ;  Jennings  v.  Alexander,  1 
Hilt.,  154 ;  Jackson  v.  Salmon,  4  "Wend.,  327).  The  agree- 
ment for  the  lease  being  void  by  the  statute  of  frauds,  it  would, 
under  some  circumstances,  operate  or  enure  as  an  agreement 
or  tenancy  from  year  to  year.  The  language  of  the  cases  is, 
that  it  creates  a  tenancy  from  year  to  year,  but  an  examination 
of  them  will  show  that  the  doctrine  is  by  no  means  unqualified. 
(Schuyler  v.  Leggett,  2  Co  wen,  660  ;  The  People  v.  Rickert,  8 
Cowen,  226;  Edwards  v.  demons,  24  Wend.,  480  ;  Hegan  v. 
Johnson,  2  Taunton,  148  ;  Clayton  v.  Blakely,  8  Term  R.,  3  ; 
Knight  v.  Benett,  3  Bing.,  361 ;  Cox  v.  Bent,  5  Bing.,  185  ; 
Braythwayte  v.  Hitchcock,  10  Meeson  •&  Wellsby,  494). 

In  all  these  cases,  however,  the  defendant  occupied  for  a 
year,  or  admitted  that  he  was  to  account  to  the  plaintiff  as  his 


NEW  YORK— MAY,   1860.  385 

Greaton  v.  Smith. 

landlord.  In  Hegan  v.  Johnson,  (supra\  the  defendant  entered 
undej*  an  agreement  from  the  landlord  to  give  him  a  lease  for 
fourteen  years  and  occupied  for  three  quarters  of  a  year,  and  it 
•was  held  that  under  such  an  agreement  the  landlord  could  not 
distrain.  The  Court  said  "  that  the.  defendant  certainly  did  not 
become  tenant  from  year  to  year  at  the  beginning  of  the  first 
month  or  first  three  months,  for  clearly  at  any  time  before  the 
end  of  the  first  year,  if  a  lease  had  been  tendered  to  him  and 
he  had  refused  to  execute  it,  the  leasor  might  have  ejected  him 
without  notice  to  quit,  aiid  if  he  had  executed  it,  he  would 
henceforth  have  held,  not  under  the  supposed  demise,  but 
under  the  lease."  And  in  Braithewaite  v.  Hitchcock,  (supra)) 
PAKKE,  B.  said  "  although  the  law  is  clearly  settled  that  when 
there  is  an  agreement  for  a  lease  and  an  occupation  without 
payment  of  rent,  the  occupier  is  a  mere  tenant  at  will ;  yet  it 
has  been  held  that  if  he  subsequently  pays  rent  under  that 
agreement  he  thereby  becomes  a  tenant  from  year  to  year." 
Payment  of  rent  must  be  understood  to  mean  a  payment  with 
reference  to  a  yearly  holding,  for  in  Richardson  v.  Landgridge, 
4  Taun.  128,  a  party  who  had  paid  rent  under  an  agreement 
of  this  description,  but  had  not  paid  it  with  reference  to  a  year 
or  any  aliquot  part  of  a  year,  was  held  nevertheless  a  tenant 
at  will  (see  also  Hull  v.  Wood,  14  M.  &  W.,  687).  And  in 
Edwards  v.  demons  (supra),  COWEN  J.,  said  "  the  lease  was 
in  itself  void  as  being  a  parol  one  for  four  years,  but  the  plain- 
tiffs actually  entered  and  enjoyed  for  one  year.  The  entry  and 
enjoyment  would  alone  have  made  them  liable  for  use  and 
occupation,  and  the  parol  agreement  would  have  shown  the 
amount  to  be  recovered.  It  has  also  often  been  held  that 
under  such  circumstances,  the  lease  is  in  effect  but  for  one 
year,  or  from  year  to  year,  according  to  the  time  of  enjoyment." 
None  of  these  features  exist  in  this  case.  The  defendants  did 
not  occupy  the  premises  for  a  year,  and  did  not  pay  any  rent 
in  reference  to  a  yearly  holding.  They  paid  the  rent  which 
accrued  on  the  first  of  August,  1854,  according  to  the  terms  of 
the  promised  lease,  and  which  might  subsequently  have  been 
given,  but  they  removed  from  the  premises  before  the  next 
quarter  became  due,  the  plaintiff  and  landlord  having,  in  the 
meantime,  refused  absolutely  to  execute  the  lease  agreed 
upon. 

25 


380  COURT  OF  COMMON  PLEAS. 

Greaton  v.  Smith. 

It  is  deducible  from  the  cases  referred  to,  that  there  must  be 
some  act  of  the  parties  from  which  the  law  implies  an  agree- 
ment to  occupy  for  the  year,  to  create  a  yearly  tenancy,  'and 
that  unless  such  acts  can  be  shown,  the  law  will  not  make  a 
contract  for   them.     The   defendants   quitting  the    plaintiff's 
premises  under  the  circumstances  disclosed,  proved  conclusively 
that  it  was  their  intention  either  to  hold  as  lessees  or  not  at  all, 
and  the  conduct  of  the  plaintiff  in  attempting  to  let  the  prem- 
ises as   stated   by  the  witness,  McPherson,  was  inconsistent, 
with  any  intention  on  his  part  to  regard  the  occupation  as  a 
tenancy  from  year  to  year.     It  is  true  that  this  testimony  was 
objected  to  and  admitted  under  exception,  and  the  plaintiff's 
counsel  seems  to  have  regarded  it  as  evidence. of  eviction.     It 
was  important  and  admissible  as  an  act  of  the  plaintiff  bear- 
ing upon  the  question  of  the  plaintiff's  intention  not  to  give  the 
lease  promised,  and  from  which  it  might  also  have  been  inferred 
that  he  did  not  intend  to  permit  the  defendants  to  occupy  for 
the  year  upon  their  refusal  to  accept  the  lease  submitted.     It 
is  also  true  that  the  defendants  occupied   the  premises  for 
nearly  six  months,  but  it  was  upon  the  promise  of  the  plaintiff 
to  give  them  a  lease  which  he  refused  to  carry  out,  and  having 
paid  one  quarter's  rent  according  to  the  terms  of  the  lease  con- 
templated, the  defendants  before  the  quarter  became  due,  and 
after  the  plaintiff's  refusal  to  give  the  lease  and  after  he  had 
posted  the  notice  to  let,  left  the  premises.     From  such  a  pos- 
session, attended  by  such  circumstances,  no  agreement  to  pay 
for  the  premises  for  a  whole  year  could  fairly  be  implied.     Al- 
though the  plaintiff's  promise  was  void,  he  was  not  entitled  to 
any  particular  consideration.     The  law  will  not  labor  to  give 
him  the  advantage  of  his  own  wrong,  but  leave  him  to  the 
consequences  of  an  act,  which,  if  injurious,  might  have  been 
avoided.     If  the  defendants  had  remained  in  possession  of  the 
premises  for  a  year,  then,  upon  the  doctrine  of  the  cases,  their 
liability  would  have  accrued,  or  if  they  had  continued  to  occiv- 
py  the  premises  after  the  plaintiff  refused  to  give  them  the 
lease,  they  might  be  regarded  as  having  assented  to  the  pay- 
ment of  the  rent  to  be  reserved  by  the  lease.     From  the  facts 
of  this  case,  however,  it  is  my  opinion  that  the  charge  of  the 
judge,  as  stated,  was  properly  made,  and  that  the  exception,  also 
stated,is  of  no  avail  to  the  .plaintiff.     It  follows  from  this  con7 


NEW  YOEK— MAY,  1860.  387 


Greaton  v.  Smith. 


elusion  that  the  various  requests  to  charge  made  by  the  plain- 
tiff's' counsel  were  properly  refused,  and  that  the  exceptions 
taken  are  unavailing. 

On  the  cross  examination  of- the  witness  McPherson,  the 
plaintiff's  counsel  asked  him  if  he  had  not  been  expelled  from 
an  Odd  Fellows  Lodge.  The  question  was  objected  to  and 
overruled.  The  plaintiff's  counsel  excepted.  The  question 
was  properly  excluded.  The  answer  if  in  the  affirmative  could 
in  no  way  tend  to  prove  any  issue  in  the  cause,  or  affect  the 
credibility  of  the  witness.  The  fact  was  one,too,  in  the  nature 
of  a  conviction,  being  an  expulsion  from  some  organization,  it 
must  be  assumed  having  the  power  to  expel.  It  might  be  for 
non-payment  of  dues,  but  could  scarcely  be  for  any  cause  which  by 
the  law  would  establish  moral  turpitude;  but  if  it  would,  then 
it  was  objectionable  as  a  particular  fact  upon  which  a  witness 
cannot  be  impeached.  The  plaintiff's  counsel  then  offered  to 
show  that  the  witness  had  been  convicted  and  imprisoned  for 
gross  intoxication  in  the  City  of  New  York  on  the  13th  of 
August,  1855. 

This  was  objected  to,  and  properly  excluded.  It  was  an  ef- 
fort to  impeach  a  witness  by  proof  of  a  particular  offence.  1 
Greenleqf,  §  461 ;  Varona  v.  Socarris,  8  Abbott  Pr.  K.,  302. 

The  .plaintiff  called  a  witness  named  Baptist,  who  stated  on 
his  cross-examination,  "  I  went' or  stayed  in,  to  hear  what  was 
said.  Mr.  Greaton  had  told  me  to  hear  everything  that  was 
said  about  letting  the  shop."  On  the  resumption  of  the  direct 
examination,  the  plaintiff's  counsel  asked  the  witness  to  u  state 
all  Mr.  Greaton  said  to  him  with  reference  to  the  hiring  of 
the  premises,  when  he  told  him  to  be  a  witness  of  what  occurred 
as  he  had  stated."  To  this  the  defendants'  counsel  objected,  and 
the  Court  decided  that  the  answer  must  be  limited  to  what  the 
plaintiff  told  him  about  being  a  witness,  and  the  whole  conver- 
sation could  not  be  given.  The  plaintiff  excepted.  The  wit- 
ness then  stated  all  that  Mr.  Greaton  had  said  to  him  about 
'being  a  witness.  The  exception  just  stated  was  not  well  taken. 
On  the  cross-examination  all  that  the  witness,  said  about  the 
conversation  was  that  Mr.  Greaton  told  him  to  hear  every 
thing  that  was  said  about  letting  the  shop  ;  and  it  is  fair  to 
assume,  that  the  question  which  extracted  the  answer,  related 
to  that  subject  only.  The  plaintiff  was  not  entitled  to  have, 


388  COURT  OF  COMMOX  PLEAS. 

Hadden  v.  The  New  York  Silk  Manufacturing  Company. 

as  a  part  of  that  conversation,  what  the  plaintiff  said  about 
hiring  the  premises,  and  thus  make  his  own  declarations  evi- 
dence in  his  favor.  It  was  proper  that  he  should  have  stated 
all  that  was  said  on  the  subject,  to  which  the  evidence  of  the 
witness  related,  and  that  was  allowed.  These  reasons  apply  as 
well  to  the  subsequent  offer  of  the  plaintiff's  counsel,  to  show 
what  the  plaintiff  said  in  reference  to  the  term  for  which  the 
premises  were  to  be  let  by  him.  The  plaintiff's  counsel  sub- 
sequently offered  to  prove  by  G.  "W.  Hicks,  the  hostile  feelings 
of  the  witness  McPherson,  towards  the  plaintiff,  and  asked  the 
following  question  :  "  Is  McPherson,  the  witness,  hostile  to  the 
plaintiff?"  The  defendants  objected,  and  the  Court  sustained 
the  objection.  The  plaintiff  excepted,  but  the  exception  was 
not  well  taken,  the  plaintiff  not  having  laid  the  foundation  for 
the  proof.  He  had  not  interrogated  the  witness  McPherson  on 
that  subject  ( Van  Wyck  v.  Mclntosh,  14  N.  Y.  Rep.,  443 ; 
Newton  v.  Harris,  6  N.  Y.,  345,  and  cases  cited). 

The  judgment  should  be  affirmed. 


WILLIAM  H.  HADDEN  and  others  v.  THE  NEW  YOKE  SILK 
MANUFACTURING  COMPANY. 

Sham  pleading  is  the  setting  up  of  a  defence  which  has  not  only  no  founda- 
•  tion  in  fact,  but  which,  it  is  manifest,  was  interposed  for  the  purpose  of  vex- 
ation or  delay. 

An  answer  will  not  be  adjudged  to  be  sham  simply  upon  an  affidavit  that  it  is 
false,  for  this  would  be  trying  the  merit  of  the  defence  upon  affidavits.  But 
the  Court  must  be  satisfied  from  an  inspection  of  the  pleading,  or  from  cir- 
cumstances brought  to  its  knowledge,  that  the  object  of  the  pleader  was 
either  to  delay  or  annoy  the  plaintiff,  or  else  to  trifle  with  the  Court  by  way 
of  amusement,  by  getting  it  to  pass  upon  legal  quibbles,  or  engage  in  a  fu- 
tile investigation. 

Admissions  are  a  species  of  evidence  usually  received  with  great  caution  from 
the  ease  with  which  they  can  be  fabricated,  and  the  liability  to  misapprehend 
what  was  said,  but  where  a  positive  admission  by  the  parties  to  the  suit 


NEW   Y(3RK— OCTOBER,   1860.  SS9 

Hadden  v.  The  New  York  Silk  Manufacturing  Company. 

who  are  competent  witnesses,  is  sworn  to,  and  they  neither  contradict, 
qualify,  nor  offer  any  explanation  of  it,  it  then  becomes  evidence  of  a  very 
satisfactory  character. 

Where,  on  a  motion  to  strike  out  as  sham  a  defence  good  on  its  face,  admis- 
sions on  the  part  of  the  plaintiff  are  positively,  sworn  to,  which  are  neither 
contradicted,  qualified  or  questioned,  and  which  tend  to  sustain  the  defence, 
— Held,  that  the  motion  will  be  denied. 

APPEAL  by  defendants  from  an  order  granted  at  Special 
Term,  striking  out  the  defendant's  answer'  as  sham  and  friv- 
olous. 

The  action  was  for  goods  sold  and  delivered.  The  answer 
was  a  denial  of  any  knowledge  or  information  sufficient  to 
form  a  belief,  whether  at  the  time  mentioned  in  the  complaint, 
the  plaintiffs  were  co-partners. 

"  And  the  defendants  deny  that  on  the  twenty-sixth  day  of  - 
"  February,  1859,  or  at  any  other  time,  the  plaintiffs  sold  and 
"  delivered  unto  the  defendants  the  goods,  wares  and  mer- 
"  chandise  in  the  complaint  mentioned,  or  any  goods,  wares, 
"  or  merchandise  whatsoever,  upon  the  terms  or  conditions  in 
"  the  complaint  mentioned,  or  upon  any  other  terms  or  con- 
"  ditions  whatsoever." 

The  plaintiffs  moved  on  affidavits,  to  strike  out  the  answer  as 
sham  and  frivolous,  and  for  judgment.  The  judge  below 
granted  the  motion,  and  the  defendants  appealed  to  the  Gen- 
eral Term. 

The  substance  of  the  affidavits  read  on  the  motion,  fully 
appears  in  the  opinion  of  the  Court. 

W.  G.  Harrington,  for  appellants. 
E.  Delafield  Smith,  for  respondent. 

BY  THE  COURT. — DALY,  F.  J. — The  defence  interposed  is  that 
the  goods  were  sold  to  one  Foote,  and  not  to  the  defendants  ; 
and  it  appears  by  the  affidavits  read  by  the  defendants  upon 
the  motion  that  the  plaintiffs  admitted  before  the  action  was 
brought,  that  they  had  jefused  to  give  the  company  agy  farther 


390  COUlrf  OF  COMMON  PLEAS. 

Hadden  v.  The  New  York  Silk  Manufacturing  Company. 

credit,  that 'they  had  sold  the  goods  to  Foote,  and  had  com- 
menced this  suit  at  the  request  of  Foote,  who  had  indemnified 
them  against  the  costs.  This  admission,  which  was  not  contra- 
dicted, qualified,  or  questioned  in  the  affidavits  read  in  support 
of  the  motion,  was  an  answer  to  the  application  to  strike  out 
the  defence  as  a  sham  one.  Admissions  are  a  species  of  evi- 
dence usually  received  with  great  caution,  from  the  ease  with 
which  they  can  be  fabricated,  and  the  liability  to  misappre- 
hend what  was  said ;  but  where,  as  in  this  case,  a  positive  ad- 
mission by  the  parties  to  the  suit,  who  are  competent  witnesses, 
is  sworn  to,  and  they  neither  contradict,  qualify,  nor  offer  any 
explanation  respecting  it,  it  then  becomes  evidence  of  a  highly 
satisfactory  character.  As  long  as  such  an  admission  stands 
uncontradicted,  the  defence  cannot  be  treated  as  a  sham  one. 

Sham  pleading  is  the  setting  up  of  a  defence  which  has  not 
only  no  foundation  in  fact,  but  which,  it  is  manifest,  was  inter- 
posed merely  for  the  purpose  of  vexation  or  delay.  Such 
pleading  is  an  imposition  practiced  upon  the  Court,  and  it  was 
customary,  before  the  Code,  to  compel  the  attorney  who  put  in 
such  a  plea  to  pay  the  costs  by  way  of  punishment  (Hartley 
v.  Godslake,  2  Barn.  &  Aid.,  198),  and  in  the  earlier  cases  he 
was  fined  (Pierce  v.  Blake,  2  Salk.,  515 ;  Ellis  v.  C.  B.,  2 
Wils.,  369).  This  power  of  cutting  a  party  off  from  a  defence 
which  is  good  upon  its  face,  was  exercised  only  where  the 
court  was  satisfied  from  an  inspection  of  the  pleading  itself,  or 
from  circumstances  bi  ought  to  their  knowledge,  that  the  object 
of  the  pleader  was  either  to  delay  or  annoy  the  plaintiff,  or 
else  to  trifle  with  the  court  by  way  of  amusement,  by  getting 
it  to  pass  upon  legal  quibbles,  or  engage  in  a  futile  investiga- 
tion (Blevoett  v.  Marsden,  1  East,  237 ;  Solomons  v.  Lyon,  I 
Id.,  369  ;  White  v.  Howard,  3  Taunt.,  339  ;  Idle  v.  Crutch,  I 
Chitty  R.,  524,  and  note  a.;  Bonesv.Bunter,  Id.,  564,  and 
note  a ;  Shadnell  v.  Barthoud,  5  Bar.  &  A.,  T50,  note  a  ; 
Brewster'  v.  Hall,  6  Cow.,  34).  'The  court  must  be  satis- 
fied that  the  object  of  the  plea  was  as  above  suggested,  for  it 
will  not  be  stricken  out  merely  upon  an  affidavit  that  it  is  false, 
as  that  would  be  trying  the  merits  of  the  issue  upon  affidavits. 
This  was  expressly  held  in  Idle  v.  Crutch,  1  Chitty  K.,  524. 
Before  the  Code,  the  court  exercised .  this  discretion  only  in. 


NEW  YORK— MARCH,  1861.  391 

The  Fire  Department,  &c.  v.  Buhler. 

cases  of  special  pleas,  but  now  any  defence  which  is  sham  or 
irrel event  may  be  stricken  out,  upon  motion,  upon  such  terms 
as  the  court  may,  in  their  discretion,  impose. 

To  hold,  even,  that  the  present  plea  is  false,  irrespective  of 
the  motive  that  may  have  dictated  it,  it  would  be  necessary  to 
weigh  evidence,  to  decide  that  though  the  plaintiffs  admrtted 
that  they  sold  the  goods  to  Foote,  it  was  nevertheless  manifest 
from  the  whole  of  the  evidence,  that  they  did  not,  bat  sold 
them  to  the  defendants,  which  can  not  be  done  upon  such  a 
motion,  as  that  would  be  trying  the  issue  raised  by  the  answer 
upon  affidavits.  The  order  must  be  reversed,  with  $10  costs. 


THE    FIRE    DEPARTMENT    OF    THE    CITY    OF  NEW   YOKE  v. 
DANIEL  BUHLER. 

A  dwelling  house  is  one  designed  to  be  occupied  as  a  place  of  abode  by  night 
as  well  as  day,  and  which  is  constructed  with  special  reference  to  that 
object,  and  as  long  as  it  is  capable  of  being  so  used  in  whole  or  in  part,  it 
retains  its  specific  character. 

A  building  erected  for  a  store  or  a  warehouse  does  not  become  a  dwelling 
house,  though  a  place  may  be  fitted  up  in  it  for  a  person  to  sleep  in,  nor 
does  one  originally  erected  for  a  dwelling  house  cease  to  be  such,  though  a 
part  of  it  has  been  converted  into  a  store. 

A  building,  therefore,  which  was  originally  constructed  as  8  dwelling  house 
and  was  occupied  as  such,  though  subsequently  used  in  part  as  "  a  store," 
the  attic  being  used  by  the  clerks  as  a  sleeping  apartment,  and  in  the  base- 
ment of  which  there  was  a  bed-room, — Held,  to  be  "  a  dwelling  house  " 
•within  the  meaning  of  Sections  14  and  20  of  the  Fire  laws  of  the  City  of 
New  York  (Laws  of  1849,  ch.  84,  p.  121) ;  the  roof  of  which  might  be  raised 
and  made  flat  without  subjecting  the  owner  to  the  penalty  prescribed  in 
the  statute. 

APPEAL  by  the  defendant  from  a  judgment  at  Trial  Term, 
entered  on  the  verdict  of  a  jury. 


392  COURT  OF  COMMON  PLEAS. 

The  Fire  Department,  &c.  v.  Buhler. 

The  plaintiffs  brought  this  action  to  recover  of  the  defendant 
penalties  for  an  alleged  violation  of  the  Fire  Laws  of  the  city 
of  New  York.  The  complaint  alleged  that  the  defendant  was  the 
owner  of  the  building  464  Pearl  street,  in  New  York  city  ;  that 
said  building  was  constructed  of  timber,  and  that  it  was  not  a 
dwelling  house,  nor  used  or  occupied  as  a  dwelling  house. 
That  since  July  1,  1849,  the  defendant  had  raised,  enlarged 
and  built  upon  said  building,  but  had  not  completed  it,  in  vio- 
lation of  §  20  of  the  statute,  entitled,  '•  An  Act  for  the  more 
effectual  prevention  of  fires  in  the  city  of  New  York,  and  to 
amend  the  Acts  heretofore  passed  for  that  purpose,"  passed 
March  Y,  1849.  That  due  notice  had  been  given  in  writing, 
signed  by  one  of  the  firewardens,  and  that  the  defendant  had 
neglected  to  remove  the  said  causes  of  violations  of  the  statute. 

The  alteration  complained  of  was  made  in  April,  1853,  by 
the  defendant.  The  building  was  frame,  with  a  brick  front, 
and  the  alteration  was,  raising  the  roof,  and  making  it  flat. 

Originally  the  building  had  been  a  dwelling  house.  For  six 
years  or  more,  previous  to  February,  1853,  when  the  defendant 
hired,  the  whole  first  and  second  stories  of  the  building  were 
occupied  by  David  Rockwell  &  Co.,  for  a  cloth  store,  except 
that  they  let  a  room  on  Pearl  street  as  a  carput  upholstery. 
The  attic  floor  contained  three  bed-rooms  ;  the  clerks  slept 
there,  and  ate  at  the  boarding-houses ;  they  were  single 
men.  Wilson  G.  Hunt  occupied  the  building  previous  to 
Rockwell,  as  a  cloth  store.  Thomas  G.  Hunt  &  Co.  occupied 
it  as  a  cloth  store  for  nine  years  before  Wilson  G.  Hunt 
&Co. 

Rockwell  succeeded  them,  and  Buhler,  the  defendant,  occu- 
pied the  building  as  a  furniture  store  from  February,  1853,  to 
May.  It  was  occupied  for  the  same  business  after  May. 

When  the  alterations  were  made,  in  April,  1853,  the  clerks' 
bed-rooms  in  the  attic  were  removed  ;  tjie  partitions  were  taken. 
out.  A  part  of  the  lower  floor  was,  at  one  time,  let  for  an  eat- 
ing-house ;  and  there  was  a  bed  there,  in  which  a  servant  slept. 

At  the  trial,  the  Judge,  (BKADT,  J.)  charged  the  jury,  that 
nnder  the  evidence,  the  building  was  a  store  arid  not  a  dwell- 
ing ;  that  the  plaintiffs,  as  matter  of  law,  were  entitled  to  a 
verdict,  and  ordered  the  jury  to  find  a  verdict  for  the  plaintiffs 
for  the  sum  of  five  hundred  dollars,  the  penalty  firstly  claimed 


NEW   YORK— MARCH,   1861.  393 

The  Fire  Department,  &c.  v.  Buhler. 

in   the   complaint,   to  which   the   counsel   for  the  defendant 
duly  excepted. 

The  jury  found  a  verdict  for  the  plaintiff,  and  the  defendant 
appealed  to»the  General  Term. 

A.  R.  Dyett,  H.  P.  Allen,  and  A.  H.  Wagner,  for  appellant. 
Augustus  F.  Smith  for  respondents. 

BY  THE  COURT. — DALY,  F.  J, — The  twentieth  section  of  the 
Act  of  1849  (Laws  of  1849,  p.  121),  declares  that  no  wooden  or 
frame  building,  whether  the  same  may  have  a  brick  front  or 
otherwise,  within  the  fire  limits,  shall  be  raised,  enlarged,  or 
built  upon,  provided,  however,  that  brick  front  frame  dwelling 
houses,  and  wooden  dwelling  houses  only,  may  be  raised  under 
the  circumstances  and  in  the  manner  specially  provided  for  in 
the  fourteenth  section  of  the  Act.  The  fourteenth  section 
enacts  that  if  any  brick  front  frame,  or  wooden  dwelling  house 
already  erected  within  the  fire  limits,  shall  require  new  roof- 
ing, it  may  be  lawful  for  the  proprietor  to  raise  the  same  for 
the  purpose  of  making  a  flat  roof  thereon,  provided  such  new 
roofing  be  made  of  copper,  slate,  tin,  zinc  or  iron ;  and  provided 
such  dwelling  house,  when  so  raised,  shall  not  exceed  thirty- 
five  feet  in  height  from  the  level  of  the  side  walk  to  the  peak, 
or  highest  part  thereof. 

The  building  in  question,  which  was  of  wood,  with  a  brick 
front  on  Pearl  street,  and  a  brick  front  on  Chatham  street,  as 
far  up  as  the  first  story,  had  been  erected  as  a  dwelling  house 
before  the  passage  of  the  Act,  The  defendant  was  the  lessee 
of  the  second  and  upper  stories,  and  at  the  time  when  lie  made 
the  alteration,  which  is  claimed  to  have  been  a  violation  of 
the  act,  the  roof  was  rotten  down  to  the  gutter,  and  the  build- 
ing required  a  new  roof.  The  first  and  second  stories  had 
been  occupied  for  fifteen  years  previously  for  a  cloth  store ; 
and  the  attic  contained  three  bed-rooms,  lathed  and  plastered, 
with  chimney-piece  and  closet,  in  which  the  clerks  of  the 
former  occupants  slept.  The  defendant  leased  the  upper  part 
of  the  premises  on  the  17th  of  February,  1853,  and  before  the 
May  fallowing  he  made  the  alteration  in  question.  He  carried 
up  the  front  brick  wall  on  Peari  street  to  the  height  of  the 
peak  of  the  old  roof,  and  the  wall  on  Chatham  street  to  corres- 


394  COURT  OF  COMMON  PLEAS. 

The  Fire  Department,  &c.  v.  Buhler. 

pond,  which  he  bnilt  of  wood,  and  then  put  on  a  flat  roof  of 
zinc,  the  highest  part  of  which  did  not  exceed  thirty -five  feet 
from  the  level  of  the  sidewalk,  by  this  means  changing  the  at- 
tic into  a  third  story.  In  making  the  alteration,  the  original 
ceilings  were  taken  down,  and  the ,  bed-rooms  and  partitions 
were  removed.  The  defendant  occupied  part  of  the  ground 
floor  and  the  upper  stories  as  a  furniture  store  ;  the  remaining 
part  of  the  ground  floor  being  occupied  as  a  liquor  store,  and 
the  basement  as  a  restaurant.  .  A  portion  of  the  building  was 
occupied  by  a  daguerreotypist,  who  slept  in  the  part  used  by 
him,  and  the  servants  of  the  keeper  of  the  restaurant  slept 
there. 

The  building,  when  the  act  was  passed,  and  when  the  alteration 
was  made,  must,  I  think,  be  regarded  as  a  dwelling  house.  Ac- 
cording to  the  testimony,  it  was  originally  constructed  and  ar- 
ranged to  be  used  as  a  dwelling  house,  and  the  fact  that  a  part 
of  it,  or  the  principal  part  of  it,  was  used  as  a  store,  did  not 
make  it  less  a  house  of  that  description.  A  dwelling  house  is 
one  designed  to  be  occupied  as  a  place  of  abode  by  night  as 
well  as  by  day,  and  which  is  constructed  with  especial  refer- 
ence to  that  object,  and  as  long  as  it  is  capable  of  being  so 
used,  in  whole  or  in  part,  it  retains  its  specific  character.  A 
building  erected  for  a  store  or  warehouse  does  not  become  a 
dwelling  house,  though  a  place  may  be  fitted  up  in  it  for  per- 
sons to  sleep  in  ;  nor  does  one  originally  erected  as  a  dwelling 
house,  cease  to  be  such,  though  a  part  of  it  has  been  converted 
into  a  store. 

The  building,  before  the  improvement  was  made,  was,  in  my 
judgment,  a  dwelling  house,  and  if  it  were,  the  only  question 
that  can  arise,  is,  whether  the  defendant  did  anything  more 
than  is  permitted  by  the  Act  in  the  case  of  houses  of  that  de- 
scription. I  think  he  did  not.  The  act  authorizes  the  raising 
of  the  roof  for  the  purpose  of  making  a  flat  one,  where  the 
building  requires  new  roofing,  and  by  thus  allowing  the  roof 
to  be  raised  and  made  flat,  the  act  contemplates  exactly  what 
was  done  in  this  case,  the  addition  of  another  story  by  the  rais- 
ing and  flattening  of  the  roof.  The  building  required  a  new 
roof;  it  was  raised  no  higher  than  the  limit  prescribed  by  the 
Act,  and  the  roof  was  made  of  a  material  allowed  by  the  Act. 
What  the  effect  of  the  alteration  may  be  in  the  future  use  of 


NEW  YOKE— MARCH,  1861.  395 

The  Fire  Department,  &c.  v.  Buliler. 

the  building  i& immaterial.  It  is  sufficient  that  the  statute  allows 
the  alteration  to  be  made,  if  made  in  the  mode  prescribed.  It 
imposes  no  limitation  or  restriction  except  what  is  stated,  and 
if  the  proprietor,  in 'raising  and  flattening  the  roof,  thinks 
fit  to  convert  the  former  attic  from  a  collection  of  sleeping 
apartments  into  a  single *room  to  be  used  thereafter  as  a  ware- 
room,  there  is  nothing  in  the  act  restraining  him  from  so  doing. 
The  argument  of  the  Counsel  of  the  Fire  Department  is  that  the 
effect  of  the  alteration  was  to  convert  the  whole  building  into  a 
store,  the  ground  floor  and  second  story  having  been  previously 
used  for  such  a  purpose.  This  was  scarcely  so,  as  the  servants 
of  the  restaurant  slept  in  the  basement,  in  a  room  built  in  the 
basement  for  that  purpose.  But  if  such  were  the  effect,  it 
would  make  no  difference.  The  only  question  that  can^arise,  is 
whether  it  was  a  dwelling  house'  already  erected  when  the  Act 
was  passed,  and  if  it  was,  whether  the  alteration  was  such  as 
the  Act  permitted.  This  statute  imposes  very  heavy  penalties 
for  the  violation  of  its  provisions  (Amended  Act,  Laws  of  1857, 
p.  73,  §  3),  and  it  should  not  be  extended  beyond  what  is 
plainly  expressed  or  manifestly  intended.  It  should,  in  every 
case  where  it  is  alleged  to  be  a  violation  of  the  statute,  clearly 
appear  that  the  alteration  or  enlargement  made  was  distinctly 
prohibited ;  and  this  is  not,  in  my  judgment,  such  a  case. 

.HILTON,  J.,  concurred. 

BBADY,  J.,  dissented. 

Judgment  reversed  ;  new  trial  ordered  ;  costs  to  abide  event. 


396  COUKT  OF  COMMON  PLEAS. 


McAuley  v.  Mildrum. 


WILLIAM  McAuLEY  v.  JOHN  MILDKTIM:. 

Where  the  notice  of  lien  under  the  mechanic's  lien  law  stated  that 
the  materials  were  furnished  in  pursuance  of  a  written  contract ;  Held,  that 
extra  materials  which  became  necessary  in  consequence  of  defects  in 
the  specifications  of  the  written  contract  were  covered  by  the  notice. 

A  conveyance  of  premises  by  the  owner  and  builder  made  before  the  filing 
of  the  notice  of  a  mechanic's  lien,  but  which,  by  an  instrument  executed 
subsequently  to  such  filing,  is  shown  to  have  been  intended  only  as  a 
mortgage,  does  not  prevent  the  lien  from  attaching  upon  the  equitable 
interest  of  the  owner  at  the  date  of  such  filing. 

A  mechanic's  lien  upon  a  building  covers  only  the  materials  and  work  em- 
ployed on  the  building  referred  to  in  the  notice. 

"Where  under  a  single  contract,  the  lienor  had  furnished  materials  to  the 
owner  equally  for  seven  houses,  and  one  of  such  houses  had  been  conveyed 
away  by  the  owner  before  the  filing  of  the  notice  of  lien, — field,  that  the 
lien  was  valid  as  a  lien  upon  the  remaining  six  houses,  only  for  their  pro- 
portionate part  of  the  whole  claim  (six  sevenths),  although  some 

•    payments  had  been  made  by  the  owner  on  general  account. 

APPEAL  by  the  defendant  from  a  judgment  entered  on  the  re- 
port of  a  referee. 

This  was  an  action  to  foreclose  a  mechanic's  lien.  On  the 
18th  of  May,  1857,  the  defendant  entered  into  a  contract  with 
the  plaintiff  that  the  latter  should  furnish  the  marble  for  seven 
houses  then  building,  owned  by  the  defendant,  according  to  cer- 
tain plans,  in  such  quantities  as  should  keep  two  derricks  going  ; 
the  defendant  to  pay,  as  the  work  proceeded,  $3500 — in  four 
payments,  and,  when  the  work  was  completed,  to  give  him  two 
mortgages  for  $1750  each,  for  the  balance.  Under  this  contract, 
the  plaintiff  furnished  the  marble  for  the  houses,  and  extra  mar- 
ble, beyond  that  required  by  the  plans,  to  the  value  of  $253.88. 
During  the  progress  of  the  buildings,  $1475  was  actually  paid, 
and  notes  given,  which  were  not  paid,  to  the  amount  of  $1636. 
In  the  amount  of  $1475  was  included  one  note  for  $475,  which 


NEW  YORK— APRIL,  1859.  397 

McAuley  v.  Mil  drum. 

was.  paid.  This  note  was  accepted  by  the  plaintiff,  and  the 
defendant,  in  consideration  of  his  acceptance,  released  him  from 
the  penalty  for  not  keeping  two  derricks  supplied.  The  last  load 
of  marble  was  delivered  on  the  1st  of  October,  and  the  last  be- 
fore that  on  the  21st  of  September. 

The  plaintiff  having  sonle  time  in  September  made  demand 
for  the  mortgages  under  the  contract,  and  not  obtaining  tnem, 
on  the  30th  of  September,  185T,  filed  a  notice  of  lien  on  all  the 
houses,  for  the  balance  then  due  him,  the  notice  stating  that  such 
amount  was  due  "  on  account  of  marble  furnished  and  work  per- 
formed thereon  to  the  buildings,  and  that  such  marble  was  fur- 
nished and  work  performed  in  pursuance  of  a  written  contract." 
The  amount  claimed  in  this  notice  of  lien  included  the  extra 
materials. 

On  the  1st  of  July,  1857,  the  defendant  had  made  and  deliv- 
ered to  one  Livingston  Livingston  a  deed  absolute  on  its  face, 
conveying  all  the  houses  and  lots  ;  but,  by  an  instrument  dated 
October,  1857,  executed  by  Livingston  and  Mildrum,  it  ap- 
peared that  this  deed  was  only  intended  as  a  mortgage  or  se- 
curity for  the  debts  due  to,  and  advances  made  by,  Livingston. 
A  decree  of  foreclosure  and  sale  was  obtained  against  one  of  these 
lots,  and  a  conveyance  of  that  lot  was  made  by  the  defendant  to 
Anna  M.  Pinckney,  on  the  30th  of  September..  The  defendant 
conveyed  the  other  lots  to  one  John  Haley  on  the  10th  of  Octo- 
ber, 1857.  The  defendant's  answer  also  set  up  defects  in  the 
workmanship,  the  penalty  for  keeping  one  derrick  idle,  and  de- 
nied  the  extra  work.  It  also  set  up  that  the  demand  for  the 
mortgages  was  made  before  the  conclusion  of  the  work. 

The  case  was  referred  to  a  referee,  who  found  that  the  mate- 
rials were  properly  furnished  under  the  contract,  and  the  extra 
work  done,  as  claimed  by  the  plaintiff,  at  the  request  of  the  de- 
fendant ;  that  before  the  notice  of  lien  was  filed,  one  house  and 
lot  had  been  equitably  conveyed  to  Mrs.  Pinckney,  but  that  the 
conveyance  to  Livingston  of  the  other  six  was  merely  a  mort- 
gage, and  did  not  divest  the  plaintiff's  claim  ;  that  one-seventh 
of  the  marble  furnished  was  used  in  the  construction  of  Mrs. 
Pinckney's  house,  and  that  the  plaintiff  was  entitled '  to  judg- 
ment against  the  defendant  for  the  whole  amount  of  his  claim, 
and  had  a  valid  lien  for  that  amount  on  six  of  the  houses,  the 


398  COURT  OF   COMMON  PLEAS. 

McAuley  v.  Mildrum. 

one  belonging  to  Mrs.  Pinckney  being  excepted ;  and  directed 
the  cancellation  of  the  defendant's  unpaid  notes. 
From  this  decision  the  defendant  appealed. 

John  C.  Dimmick,  for  the  appellant. 
Edgar  S.  Van  Winkle,  for  the  respondent. 

BY  THE  COUKT. — DALY,  F.  J. — The  lien  was  filed  on  the  30th 
of  September,  1857.  It  embraced  marble  furnished  and  work 
performed  in  pursuance  of  a  written  contract  entered  into  be- 
tween the  plaintiff  and  the  defendant,  and  did  not  and  could  not 
include  materials  furnished  or  work  performed  after  that  date. 
The  contract  was  given  in  evidence.  By  the  terms  of  it,  the 
plaintiff  was  to  furnish  the  marble  for  the  seven  houses  accord- 
ing to  the  plans,  cut  in  a  workmanlike  manner,  finished  com- 
plete, ready  for  setting,  and  of  quality  as  good  as  the  pattern 
houses.  After  specifying  the  dimensions  of  the  ashlar  in  and 
above  the  basement,  and  enumerating  certain  things  that  are  to 
be  included,  such  as  street  roof  and  chimney  coping,  sills,  lin- 
tels, &c.,  the  contract  closes  with  a  provision  that  it  is  to  in- 
clude all  work  shown  in  the  plans,  or  which  may  be  necessary  to 
finish  the  houses  and  appurtenances  according  to  the  defend- 
ant's, Mildrum's  design  in  building.  It  appeared  by  the  answer 
that  the  last  load  of  stone,  which  was  the  base  blocks  for  the 
iron  railings,  was  delivered  at  the  building  on  the  1st  of  Octo- 
ber, 1857,  the  day  after  the  notice  of  lien  was  filed.  We  have 
not  the  plans  to  ascertain  whether  this  work,  the  base  blocks  for 
the  iron  railings,  was  included  in  the  contract ;  but  it  was  said, 
and  I  understood  it  to  have  been  conceded  at  the  argument,  that 
the  plans  were  before  the  referee,  and  that  this  work  was  not 
embraced  by  them.  If  so,  it  was  extra  work  ;  and  as  the  last 
load  before  this  was  delivered  at  the  building  on  the  4th  of 
September,  1857,  it  may  be  concluded  that  all  th,e  work  was 
performed,  and  all  the  materials  furnished,  embraced  in  the 
written  contract  to  which  the  notice  of  lien  referred,  before  the 
filing  of  the  notice.  There  was  extra  work  specified  in  the  bill 
of  particulars  attached  to  the  notice  of  lien,  to  the  value  of 
$253.88,  which  does  not  appear  to  have  included  the  base  blocks 
for  the  iron  railings  delivered  on  the  1st  of  October,  1857,  and 
it  may  therefore  be  concluded  further,  that  the  extra  work, 


NEW  YOKK— APRIL,  1859.  399 

McAuley  v.  Mildrurn. 

which  consisted  of  twelve  extra  steps,  stoop  ashlar,  and  ashlar 
below  sill  course,  by  which  term  ashlar  I  understand  a  stone  fa- 
cing or  slab,  covering  brick  work  or  rubble,  was  also  completed 
before  the  filing  of  the  notice  of  the  lien.  The  referee  allowed 
$5861.97  as  due  upon  the  written  contract,  after  deducting  pay- 
ments, and  allowing  interest  from  the  time  when  the  payments 
were  to  be  made  under  the  contract,  and  the  $286.56  for  extra 
work,  with  interest  upon  it  from  the  date  of  the  filing  of  the 
lien.  The  only  question  that  could  arise  in  respect  to  this 
$286.56  for  extra  work,  was,  whether  it  was  embraced  in  and 
covered  by  the  notice  of  the  lien  ;  and  as  there  was  some  evi- 
dence showing  that  this  work  became  necessary  in  consequence 
of  defects  in  the  plans,  I  think  that  it  might  fairly  be  regarded 
as  covered  by  the  notice,  and  that  the  referee  did  right  to 
allow  it.  He  does  not  appear  to  have  allowed  for  the  materi- 
als furnished  or  work  done  on  or  after  the  1st  of  October, 
which  has  been  referred  to,  and  there  can  be  no  objection  on 
that  head. 

As  to  the  quality  of  the  materials,  the  manner  in  which  the 
stone  was  cut,  and  the  work  done,  the  evidence  was  conflict- 
ing. There  was  evidence  on  the  part  of  the  plaintiff  that  it 
was  in  all  respects  in  conformity  with  the  contract,  and  the  re- 
feree having  found  that  it  was,  his  decision  upon  that  point  is 
conclusive.  If  there  was  an  omission  or  failure  on  the 
part  of  the  plaintiff  to  keep  two  derricks  constantly  going, 
the  defendant  waived  all  claim  to  damages  in  consideration  of 
the  plaintiff's  taking  his  n6te  for  what  remained  of  one  of  the 
payments,  which  note  was  taken  by  the  plaintiff  and  was  paid. 

The  evidence  as  to  the  time  when  the  demand  of  the  mort- 
gage was  made,  was  that  it  was  about  the  time  when  the 
plaintiff's  contract  for  the  stone  work  was  done  ;  some  two  or 
three  weeks  before  the  filing  of  the  notice  of  the  lien.  The 
evidence  left  the  time  somewhat  uncertain,  but  it  was  positive 
as  to  a  demand  before  the  filing  of  the  notice  ;  and  the  referee 
having  found  that  the  mortgage  was  duly  demanded,  after 
the  written  contract  had  been  performed,  and  before  the 
filing  of  the  notice,  we  would  not,  I  think,  be  justified  in  hold- 
ing that  he  was  not  warranted  by  the  evidence  in  so  finding. 

The  conveyance  to  Livingston  was  in  effect  a  mortgage  given 
to  secure  certain  moneys  advanced  by  Livingston  to  the  plain- 


400  COURT    OF    COMMON    PLEAS. 

McAuley  v.  Mildrum. 

tiff,  and  did  not  show  that  the  plaintiff  had  parted  with  his  in- 
terest as  owner  before  the  filing  of  the  notice. 

The  lieu  could  attach  only  to  the  land  and  buildings  owned 
by  the  plaintiff  at  the  time  of  the  filing  of  the  notice,  and  only 
to  the  extent  of  the  labor  and  materials  upon  the  house,  build- 
ing, appurtenances,  and  land  to  which  the  lien  attached.  The 
words  of  the  statute  are,  that  the  person  performing  labor,  or 
furnishing  materials,  in  building,  altering  or  repairing  "  any 
house  or  other  building,"  shall  have  a  lien  for  the  value  of  snch 
labor  and  materials  "  upon  such  house  or  building,  and  appur- 
tenances, and  upon  the  lot  of  land  upon  which  the  same 
stand."  I  think  it  follows  from  this  provision  that  the  six 
houses  owned  by  the  defendant  when  the  notice  of  lien  was 
filed,  could  not  be  charged  with  the  labor  and  materials  that 
had  gone  to  the  erection  of  the  seventh  house,  and  which  be- 
fore the  filing  of  the  notice,  had  been,  as  tli£  referee  has  found, 
equitably  conveyed  to  Mrs.  Pinckney,  and  was  then  owned  by 
her.  The  lien  did  not, .  as  he  has  found,  attach  to  that  house, 
nor  could  the  lien  which  attached  to  the  six  houses  cover  any 
thing  more  than  the  labor  and  materials  that  had  gone  to  tlaeir 
erection.  I  do  not  see  upon  what  principle  of  construction  we 
could  hold,  that  the  right  o'f  lien  which  was  lost  by  the  sale 
and  transfer  of  that  housp,  or  rather  which  had  not  been  crea- 
ted by  the  filing  of  the  notice  when  that  sale  and  transfer  took 
place,  could  by  the  filing  of  the  notice  attach  to  the  other  six 
houses; — and  to  this  extent  I  think 'the  referee  erred.  The 
filing  of  the  notice  created  a  lien  upon  the  other  six  houses  for 
the  value  of  the  labor  and  materials  that  had  gone  to  their 
erection,  to  the  extent  of  the  whole  of  the  plaintiff's  right,  title 
and  interest  in  those  houses  existing  at  the  time  of  the  filing  of 
the  notice,  (Paine,  v.  Bouncy,  4  E.  D.  Smith,  734),  but  this  was 
its  limit  and  extent.  As  the  labor  and  materials  were  fur- 
nished by  the  plaintiff  under  a  contract  made  with  the  defend- 
ant, the  plaintiff  may  have  been  entitled  under  §  6  of  the 
amended  Act  of  1855,  to  a  judgment  for  the  whole  amount 
owing  to  him  by  the  defendant  under  the  contract;  and 'if  the 
property  still  continued  in  the  defendant,  that  judgment,  from 
the  time  that  it  was  docketed,  would  in  itself  be  a  lien  upon 
the  premises — but  if,  in  the  meanwhile,  they  had  been  trans- 
ferred to  another  owner,  they  would  pass  in  virtue  of  the  filing 


NEW  YORK— MAY,   1864.  401 

Petrie  v.  Fitzgerald. 

of  the  plaintiff's  notice,  subject  only  to  a  lien  to  the  extent  of 
the  value  of  the  work  and  the  materials  which  the  plaintiff 
had  furnished  towards  their  erection,  and  the  judgment  in  this 
action  should  be  to  the  extent  to  which  the  lien  attached  at 
the  time  of  the  filing  of  the  notice,  and  the  amount  of  it  should 
be  ascertained  and  specified  by  the  judgment.  The  case  there- 
fore should  go  back  to  the  referee,  to  ascertain  the  value  of  the 
work  and  materials  supplied  by  the  plaintiff  in  the  erection  of 
these  six  buildings,  that  the  judgment  in  rem  may  be  limited 
to  that  amount. 

Judgment    reversed.      New  trial  ordered,  costs  to- abide 
event.* 


PBTEIE  v.  FITZGERALD. 

It  is  not  a  ground  for  setting  aside  an  order  of  arrest  that  the  party  had  been 
arrested  previously  in  the  same  suit,  and  on  the  same  process,  on  a  day  of 
general  election.  The  exemption  from  arrest  expires  with  the  day  of  election, 
and  the  parties  afterwards  stand  towards  each  other  as  if  no  previous  arrest 
had  been  made. 

The  defendant  having  attended  Court  upon  the  order  of  a  judge  thereof,  to 
give  information  in  a  proceeding  instituted  by  him,  was  arrested  while  leav- 
ing the  Court  House.  The  defendant  gave  bail,  and  his  sureties  being 
icxcepted  to,  gave  notice  of  justification,  and  subsequently  moved  for  his  dis- 
charge, on  the  ground  that  he  was  privileged  from  arrest  as  a  suitor  or  wit- 
ness,— Held,  that  although  the  defendant  was  privileged  from  arrest  at  the 
time  of  his  seizure,  yet  having  given  bail,  and  notice  of  justification  of  his 
sureties,  he  waived  his  privilege,  and  could  not  urge  it  on  a  motion  to  be 
discharged  on  the  ground  of  his  exemption. 

The  exemption  of  a  party  or  witness  from  arrest  is  a  personal  privilege  which 
can  be  waived  ;  and  the  waiver  is  complete  when  the  party  or  witness  fails 
to  claim  it  at  once,  and  does  some  act  in  the  cause  in  reference  to  his  appear- 
ance or  defence. 

APPEAL  by  the  defendant  from  an  order  made  at  Special 
Term,  denying  a  motion  to  set  asidft  an  order  of  arrest. 

*  The  ruling  in  this  case  was  reaffirmed  at  February  General  Term,  1866, 
McMuUen  v.  Chester.    Present  DALY,  F.  J.,  BRADY  and  CAKDOZO,  JJ. 
26 


402  COURT  OF  COMMON  PLEAS. 

Petrie  v.  Fitzgerald. 

The  defendant  was  originally  arrested  on  the  day  of  a 
General  Election,  November  3,  1863.  He  moved  for  his  dis- 
charge on  the  ground  that  he  was  an  elector,  entitled  to  vote* 
and  was  therefore  exempt  from  arrest  on  election  day. 

A  default  having  been  suffered  by  the  defendant  in  this  mo- 
tion, the  same  was  opened,  on  condition  that  the  defendant 
should  appear  personally  on  the  day  for  which  the  hearing  of 
the  motion  was  set  down,  and  submit  to  an  examination  as  to 
the  matters  set  forth  in  the  defendant's  motion  papers. 

The  defendant  having  given  bail,  had  removed  to  New 
Jersey,  in  which  State  he  was  served  with  a  copy  of  the  order 
and  a  subpoena.  The  defendant  appeared  in  obedience  to 
the  subpoena,  and  the  plaintiff's  counsel  having  examined 
him,  entered  an  order  on  his  own  motion,  vacating  and  set- 
ting aside  the  order  of  arrest,  with  a  further  order,  "  that  the 
sheriff  of  the  City  and  County  of  New  York,  to  whom  such 
order  of  arrest  was  directed,  proceed  forthwith  to  re-execute 
such  process,  and  re-arrest  said  defendant  thereon.'' 

On  this  last  order  the  defendant  was  forthwith  arrested  as  he 
was  leaving  the  City  Hall.  The  defendant  executed  an  under 
taking  with  sureties  pursuant  to  the  provisions  of  the  Code, 
and  moved  to  set  aside  the  second  order  of  arrest,  on  the 
ground  that  he  came  within  the  jurisdiction  of  the  Court  in 
obedience  to  an  order  of  a  judge  thereof  and  a  subpoena  issued 
out  ot'fhe  Court,  and  that  he  was  therefore  privileged  from 
arrest  in  going  to  and  returning  from  Court  as  a  witness. 

The  motion  was  denied  without  costs,  but  all  proceedings  in 
the  cause  were  stayed  until  the  defendant  could  appeal  to  the 
General  Term,  and  such  appeal  could  be  heard  and  decided. 

The  defendant  appealed  accordingly. 

J.  Soils  Ritterband,  and  8.  B.  IT.  Judah,  for  appellant. 
George  C.  Barrett,  for  respondent. 

BY  THE  COUBT.— BRADY,  J. — The  defendant  in  this  case  was 
arrested  on  the  3rd  day  of  November,  1863,  which  was  a 
day  for  a  general  election.  Claiming  exemption  as  an 
elector,  he  caused  to  be  served  a  notice  of  motion  for  his  dis- 
charge from  arrest  and  to  declare  the  service  of  the  process 
upon  him  invalid.  The  plaintiff's  counsel  being  desirous  of 


]STEW  YOKK— MAY,  1864.  403 


Petrie  v.  Fitzgerald. 


ascertaining  from  an  examination  of  the  defendant  whether  he 
was  a  citizen,  and  whether  or  not  there  were  any  circumstances 
which  rendered  it  impossible  that  he  could  legally  exercise  his 
franchise,  insisted  upon  the  defendant's  attendance  on  some 
day  on  which  the  motion  might  be  heard,  and  with  a  view  to 
enforcing  this  design,  obtained  from  the  judge  at  Special  Term 
an  order  requiring  the  defendant's  attendance,  and  also  served 
a  subpoena  upon  him.  The  defendant  was  temporarily  absent 
at  this  time  and  sojourning  in  the  State  of  New  Jersey,  whither 
lie  went  after  his  arrest,  and  after  the  service  of  the  order  and 
subpoena  was  made  upon  him  in  that  State.  He  attended 
however  upon  the  last  day  to  which  his  motion  had  been  ad- 
journed, and  was  informally  examined  by  the  plaintiff's 
counsel,  who,  being  satisfied  from  the  examination  that  neither 
the  arrest  nor  the  service  of  process  wasfegal,  entered  an  order 
declaratory  thereof,  and  paid  to  the  defendant's  attorney  the 
costs  granted  by  the  Court.  The  defendant  after  this  was  done 
left  the  Court  room,  and  before  he  had  had  reasonable  time  to 
leave  the  City  Hall,  was  arrested  again  in  this  action. 

The  papers  designed  for  the  first  action  are  not  before  us. 
Whether  it  was  shown  by  them  conclusively  that  the  defen- 
dant was  an  elector  or  not,  does  not  appear.  It  would  seem, 
however,  from  his  statement  when  examined  by  the  plaintiff's 
counsel,  that  he  was  not  a  registered  voter,  and  not  a  citizen. 
He  says  that  he  did  not  have  his  name  registered  because 
"  he  had  never  gone  through  the  form  of  being  naturalized  in 
any  office."  If  he  were  native  born,  he  did  not  require  to  be 
naturalized,  and  if  foreign  born,  naturalization  was  indispensa- 
ble to  make  him  an  elector.  His  statement  that  he  was  an 
elector  was  the  declaration  of  a  legal  conclusion,  which  upon  the 
facts  disclosed,  so  far  as  they  appear  on  the  papers  before  us, 
could  not  be  sustained.  The  plaintiff's  counsel,  however, 
seems  to  have  been  satisfied  that  the  defendant  was  exempt, 
and  discontinued  his  -proceedings.  The  first  question  which 
presents  itself  on  the  facts  detailed,  is  whether  the  second 
arrest  was  lawful,  and  its  consideration  involves  two  proposi- 
tions. 

1.  Could  the  defendant  bo  arrested  again  in  this  suit  on  the 
same  process) 


404:  COURT  OF  COMMON  PLEAS. 

Petrie  v.  Fitzgerald. 

2.  Was  be  privileged  from  arrest  at  the  time  the  arrest  was 
made? 

There  can  be  no  well-founded  doubt  of  the  right  to  arrest  the 
defendant  again.  The  privilege  or  exemption  from  arrest  ex- 
pired with  the  election  day,  and  the  parties  are  put  upon  the  same 
legal  relation  towards  each  other  as  if  the  arrest  had  not  been 
made  (Peck  v.  Hosier,  14  John.,  346 ;  Sperry  v.  Willard,  1 
"Wend.,  32  ;  Humphrey  v.  Gumming,  5  Wend.,  90.) 

This  right  does  not  seem  to  be  disputed  by  the  defendant. 
He  claims  exemption  as  a  witness  and  suitor.  The  privilege  from 
arrest  on  the  day  of  an  election  was  created  with  reference  to  the 
elective  franchise  which  as  a  part  of  our  system  of  government 
should  be  protected,  and  its  free  exercise  secured  for  the  public 
good.  I  am  aware  that  there  had  not  been  an  arrest  upon  an 
election  day  in  any  of  the  cases  which  are  cited,  but  so  far  as 
the  immediate  question  under  consideration  is  concerned,  there 
is  no  difference  in  principle  between  the  privilege  of  a  person 
as  a  witness,  suitor,  or  elector.  While  the  privilege  continues, 
the  person  is  sacred,  but  not  longer.  The  right  to  arrest  the 
defendant  existing  for  these  reasons,  was  it  lawfully  exercised  ? 
This  brings  us  to  the  second  question. 

The  counsel  for  the  respective  parties  to  this  controversy 
have  discussed  this  subject  more  particularly  in  reference  to  the 
privilege  of  the  defendant  as  a  witness,  in  which  character  he,  as 
he  alleges,  attended  this  Court  on  the  day  of  his  second  arrest. 
It  is  not  necessary  to  consider  on  this  appeal  that  aspect  of  the 
question.  If  it  were,  it  could  be  demonstrated  that  the  defen- 
dant was  not  bound  to  attend  as  a  witness  on  behalf  of  the 
plaintiff,  and  that  his  appearance  was  voluntary  in  that  char- 
acter. He  was  served  with  a  subpoena  out  of  the  jurisdiction 
of  this  Court  and  of  this  State.  He  had  a  right,  however,  to 
attend  this  Court  on  the  day  on  which  the  motion  for  a  dis- 
charge on  his  behalf  was  to  have  been  made.  It  was  an  ab- 
stract right,  in  the  exercise  of  which  he  enjoyed  a  perfect 
immunity  from  arrest — the  right  of  a  suitor  which  has  in  no 
respect  been  diminished  in  this  State  by  either  written  or  un- 
written law.  See  Graham's  Pr.  (2  Ed.),  p.  129,  where  the 
cases  on  this  subject  are  collected.  His  right  was  that  of  go- 
ing to,  remaining  at,  and  returning  from  this  Court  without  in- 
terference with  his  liberty — eundo,  morando,  redeundo.  And 


NEW  YORK— MAY,  1864.  405 

Petrie  v.  Fitzgerald. 

that  rig^t,  if  it  could  be  enlarged,  was  so  enlarged  by  the  order  of 
this  Court,  requiring  him  to  attend,  and  in  reference  to  the  pro- 
ceeding which  he  had  set  in  motion,  and  about  which  this 
Court  deemed  further  information  from  him  necessary.  He 
•was,  therefore,  as  a  suitor,  privileged  from  arrest  at  the  time 
of  his  seizure,  and  would  have  been  entitled  to  his  discharge 
on  application.  If  he  had  been  in  fact  privileged  as  a  witness, 
his  discharge  could  have  been  made  by  the  sheriff,  or  the 
sheriff  could  have  desisted  from  making  the  arrest,  on  his 
making  the  affidavit  prescribed  by  the  statute,  3  Rev.  Stat. 
(5  Ed.),  p.  685,  §  69,  but  the  evidence  furnished  shows,  I  think, 
that  he  did  not  claim  his  discharge  on  that  ground  from  that 
officer.  In  the  view  which  I  take  of  this  case,  however,  that 
is  not  material.  My  conclusions  are  for  these  reasons,  that  the 
right  to  arrest  the  defendant  was  given  by  law,  but  that  it  was 
employed  at  a  time  when  he  was  secured  from  it  temporarily 
by  his  privilege,  and  it  follows  that  the  motion  made  on  his 
behalf  to  be  discharged,  was  improperly  denied,  unless  he 
waived  the  right  to  be  discharged  by  his  own  acts  in  reference 
to  this  action.  The  acts  arrayed  against  him  are 

1.  Giving  an  undertaking  upon  his  arrest,  and 

2.  "When  the  sureties  to  that  undertaking  were  excepted  to, 
giving  notice  of  justification. 

The  exemption  from  arrest  is  a  personal  privilege  which  can 
be  waived,  and  the  waiver  is  complete,  when  the  party  or  wit- 
ness fails  to  claim  it  at  once,  and  does  some  act  in  the  cause 
in  reference  to  his  appearance  or  defence.  (HardenbrooWs  Case, 
8  Abbott's  Pr.,  416  ;  Stewart  v.  Howard,  15  Barb.,  26  ;  Pixloy 
v.  Winchell,  7  Cowen,  366 ;  Dix  v.  Palmer,  5  How.  Pr.  R., 
233  ;  Geyer  v.  Irwin,  4  Ball.,  107  ;  Cole  v.  McClettan,  4  Hill, 
59  ;  Brown  v.  Getckell,  11  Mason,  11,  14.) 

Thus,  in  Geyer  v.  Irwin,  the  defendant  was  a  member  of 
the  general  assembly.  On  his  arrest  he  did  not  claim  his  ex- 
emption, and  when  the  cause  against  him  was  called  for  trial, 
he  confessed  judgment.  The  Court  refused  to  discharge  him.  In 
Stewart  v.  Howard,  the  defendant  was  arrested  while  attend- 
ing as  a  witness.  He  put  in  a  general  appearance,  and  gave 
an  undertaking  whjch  was  perfected  by  the  omission  of  the 
plaintiff  to  except  to  the  sureties.  The  Court  refused  to  dis- 
charge him.  In  Cole  v.  McCleUan,  the  defendant  was  a 


406         .       COURT  OF  COMMON  PLEAS. 

Petrie  v.  Fitzgerald. 

Counsellor  at  Law,  and  claimed  that  when  arrested  he  was  in 
attendance  at  Court  as  such.  The  Court  recognized  *tlie  doc- 
trine of  waiver.  In  Brown,  v.  Getchel,  the  defendant  was  a 
party  to  a  suit  pending,  and  in  attendance  in  his  case  when 
arrested.  He  executed  a  bail  bond  that  he  might  "  have  the 
ease  and  favor  of  his  liberty."  It  was  held  that  by  giving  the 
bond  he  waived  his  exemption.  In  Pixley  v.  Wine/tell,  the 
Court  held  that  putting  in  special  bail  was  a  waiver  of  a  fatal 
defect  in  the  capias  ad  respondendum^  although  neither  the 
defendant  nor  his  attorney  knew  of  the  defect ;  and  in  Dix  v. 
Palmer,  Justice  GEIDLEY  said  "  the  defect  in  the  summons 
would  be  a  fatal  objection  to  the  judgment,  had  not  the  defen- 
dant's attorney  given  a  general  notice  of  appearance,  and 
waived  the  irregularity." 

In  the  case  of  The  Columbian  Insurance  Company  v. 
Force  (8  How.  Pr.  Rep.,  353),  however,  the  Supreme  Court 
•held  that  the  defendant,  by  giving  bail  or  procuring  an 
undertaking,  did  not  thereby  waive  his  objections  to  the  legal- 
ity of  the  arrest,  unless  he  did  so  voluntarily,  and  that  under 
the  former  system  the  execution  of  a  bond  to  be  discharged 
from  arrest  by  the  defendant  himself,  did  not  have  that  effect. 
The  distinction,  however,  between  a  bail  bond  under  that  sys- 
tem, and  an  undertaking  under  the  Code,  was  not  noticed  in 
that  case.  There  is  a  wide  difference.  The  present  undertak- 
ing is  a  substitute  for  the  special  bail,  which  followed  the  bail 
bond,  necessarily  under  the  old  system.  We  find  also  that  in 
the  cases  of  Reynolds  v.  Bankin  (4  Barn.  &  Aid.,  536) ;  Tayler 
v.  Rutherman  (6  J.  B.  Moore,  264) ;  Fahrbrodh  v.  Solbers  (10 
Id.,  322);  McBeath  v.  Chatterly  (2  Dow.  &  Ry.,  237), 
each  of  the  defendants  was  arrested  on  a  capias  issued  against 
him  by  initials  of  his  Christian  name,  and  when  arrested,  each 
defendant  executed  a  bail  bond  by  the  name  as  written  in  the 
capias.  The  courts  held  the  arrest  in  each  case  to  be  irregular, 
aud  ordered  the  bond  given  to  be  cancelled,  and  the  defendant 
discharged,  on  entering  a  common  appearance,  thus,  in  effect, 
declaring  that  giving  a  bail  bond  was  not  a  waiver  of  the 
right  to  question  the  legality  of  the  arrest.  In  Tayler  v.  Ruth- 
erman, the  court  were  of  the  opinion  that  the  bail  bond  was 
given  by  the  defendant  under  duress,  that  is,  not  voluntarily, 
and  that  the  irregularity  was  not  waived.  This  examination 


NEW  YORK— MAY,  1864.  407 


Petrie  v.  Fitzgerald. 


of  cases  affecting  the  subject  under  consideration,  would  seem 
to  show  a  want  of  harmony  in  them*;  but  such  is  not  neces- 
sarily the  case,  inasmuch  as  it  must  be  remarked  that  neither 
in  the  case  of  The  -Col.  Ins.  Go.  v.  Force,  nor  in  any  of 
the  cases  just  referred  to,  did  the  exemption  from  arrest 
exist.  They  are  not  authorities,  therefore,  against  the  propo- 
sition that  in  cases  of  privilege,  the  exemption  may  be  waived 
in  the  manner  stated.  They  sustain  the  declaration  of  the 
court  in  The  Col.  Ins.  Co.  v.  Force,  that  the  giving  of  a  bond 
under  the  former  system  did  not  always  have  the  effect  of 
waiving  objections  to  the  legality  of  the  arrest,  but  that  is  their 
full  scope.  But  assuming  that  they  are  analogous  cases  in 
principle,  then  it  cannot  be  gainsayed  that  the  weight  of  au- 
thority in  this  State  sustains  the  doctrine  that  the  exemption 
from  arrest,  which  is  but  temporary,  may  be  waived.  The 
Code  is  silent  upon  the  subject.  Section  204  relates  only  to 
applications  to  discharge  the  order  of  arrest  which  may  be. 
made  at  any  time  before  judgment.  This  is  a  very  different 
application.  Here  the  order  is  not  assailed,  but  the  arrest 
made  under  its  authority  at  a  time  when  it  could  not  be  en- 
forced. The  defendant,  on  hia  arrest,  gave  an  undertaking, 
and  when  his  sureties  were  excepted  to,  gave  notice  of  justifi- 
cation. That  they  failed  to  justify  is  no  fault  of  the  pla'intiff. 
The  defendant  did  all  that  he  could  in  that  particular  proceed- 
ing to  perfect  his  bail.  If  he  did  not  intend  to  waive  his  priv- 
ilege, he  should  have  moved  for  his  discharge,  at  least  after 
he  gave  the  undertaking.  It  was  an  idle  ceremony  to  go  on 
with  the  perfection  of  his  bail,  unless  he  intended  to  submit  to 
his  arrest  as  proper.  Neither  his  adversary  nor  this  court 
should  be  subjected  to  unnecessary  formula.  His  personal 
privilege  concerned  himself,  and  if  he  intended  to  enforce  it, 
he  should  have  done  so  diligently.  It  was  but  a  temporary 
right  which  did  not  shield  him  longer  than  it  continued,  and 
was  an  interruption  of  the  administration  of  justice  which  we 
are  not  bound  to  enlarge  by  a  departure  from  well  established 
principles. 

I  think  the  order  appealed  from,  therefore,  should  be  af- 
firmed. The  order  made  at  Special  Term  requiring  the  attend- 
ance of  the  defendant,  disproves  the  truthfulness  of  any  sug- 
gestion that  he  was  decoyed  into  the  jurisdiction  of  this  Court 


40S  COURT  OF  COMMON  PLEAS. 

Emery  v.  Dunbar. 

by  a  trick,  and  therefore  that  suggestion  is  not  worthy  of  seri- 
ous consideration.  The  defendant  was  temporarily  absent  from 
this  city,  which  was  his  place  of  residence,  and  left  it  on  his 
arrest  after  election  day.  Why  he  left  it,  is  apparent  from  the 
disclosures  made  in  this  case.  With  that,  however,  we  have 
nothing  to  do  on  this  appeal. 

The  order  appealed  from  should  be  affirmed,  with  ten  dollars 
costs. 


THOMAS  S.  EMERT  and  others  v.   ALBERT   DUNBAR   and 
CHARLES  L.    COOLEY. 

In  the  absence  of  a  special  agreement  to  the  contrary,  freight  paid  in  advance 
may  be  recovered  back,  where,  by  reason  of  the  capture  or  shipwreck  of  the 
vessel,  or  for  any  other  cause,  the  goods  are  not  carried  to  the  place  of  their 
destination.  And  this  rule  of  law  cannot  be  controlled  by  proof  of  any 
usage  to  the  contrary. 

APPEAL  by  the  defendants  from  an  order  entered  at  Special 
Term;  that  judgment  be  entered  on  plaintiff's  demurrer  to  the 
answer. 

The  facts,  as  admitted  by  the  pleadings,  were  these.  The 
plaintiffs  shipped  and  delivered,  and  the  defendants  received, 
certain  goods  on  board  the  ship  Commonwealth,  belonging  to 
the  defendants,  and  lying  at  the  city  and  port  of  New  York — 
the  defendants  delivering  to  the  plaintiff  bills  of  lading,  by 
which  the  defendants  agreed  to  deliver  the  said  goods  at  the 
port  of  San  Francisco,  in  good  order  and  condition,  the  dam- 
ages of  the  seas  only  excepted,  to  the  consignees  therein 
named,  or  their  assigns,  they  (the  consignees)  or  their  assigns 
paying  freight  for  the  same. 

The  plaintiffs,  before  the  sailing  of  the  vessel,  paid  to  the 
defendants  the  amount  of  the  freight.  On  the  voyage,  the 
vessel  and  her  cargo  were  destroyed  by  a  Confederate  cruiser. 

The  plaintiffs  seek  to  recover  the  amount  of  freight  thus 
paid  in  advance. 

The  answer  of  the  defendants  was  that  at  the  time  of  the 


NEW    YORK— FEBKUAKY,   1865.  409 

Emery  v.  Dunbar. 

payment  of  the  freight  it  was,  and  from  time  immemorial 
thereuntil  had  been  the  custom  and  usage  of  the  United  States 
of  America,  and  of  the  State  of  New  York,  and  of  the  ship- 
owners, shippers  and  merchants  of,  and  of  the  shippers  from 
the  said  United  States  of  America  and  State  of  New  York, 
that  freight  so  paid  in  advance  is  paid  unconditionally,  and 
not  subject  to  the  risk  of  the  voyage,  and  is  not  repaid,  but 
is  retained  by  the  shipowner,  provided  that  the  goods  be  taken 
on  board,  and  the  voyage  commence  or  have  commenced. 

The  plaintiffs  demurred  to  the  answer.  The  demurrer 
was  sustained,  and  judgment  ordered  for  the  plaintiffs — from 
which  the  defendants  appealed  to  the  General  Term. 

Augustus  B.  Knowlton,  for  appellant. 

I.  The   shipper  and  owner  may  agree  that  freight,  eo  nom- 
inee, paid  in  advance,  is*  paid   unconditionally,   and   without 
reference  to  the  completion  of  the  voyage,  and  freight  so  paid 
cannot  be  recovered  (Phelps  v.  Williamson  et  al.,  5  Sand.  578  ; 

Watson  v.  Duykinck,  3  Johns.  335  ;  Griggs  v.  Austin  et  al., 
3  Pick.  20 ;  J)e  Silvale  v.  Kendall,  4  Maule  &  Selw.  37  ;  and 
see  Andrew  v.  Moorhouse,  5  Taunt.  435  ;  Saunders  v.  Drew,  3 
Barn.  &  Aid.  445 ;  Anon.  2  Show.  291,  283). 

II.  And  an  agreement  that  freight  so  paid  is  paid  uncondi- 
tionally, may  be  inferred  from  circumstances  (1  Parsons'  Mari- 
time Law,  223  ;  Andrew  v.  Morehouse,  5  Taunt.  435  ;  Griggs  v. 
Austin,  3  Pick.  25). 

III.  And  a  custom  that  freight  so  paid  in  advance  is  paid 
unconditionally,  &c.,  is  a  circumstance  from  which  such  an 
agreement  may  be  inferred  ( Watson  v.  Duykinck,  3  Johns. 
335  ;  GiUan  v.  Simpkin,  4  Camp.  241). 

IV.  Parties  are  presumed  to  contract  with  reference #0  a 
general  custom  of  the  State  wherein  the  contract  is  made, 
unless  such  a  custom  be  contradictory  to  the  terms  of  the  con- 
tract (Ilinton  v.  Locke,  5  Hill,  437 ;  2  Pars,  on  Cont.  49,  et  seq. 
[4th   ed.]).    The   question   as   to  the   payment  of  freight  18, 
entirely  dehora  the  bill  of  lading — that  instrument  containing 
no  provision  as  to  the  time  or  place  when,  or  the  terms  on 
which  freight  shall  be  paid.     For  the  clause  "they  or  their 
assigns  paying  freight  for  the  same,"  is,  where  the  shippers  are 
also  owners  of  the  goods,  which  is  the  case  here,  introduced 


410  COURT  OF  COMMON  PLEAS. 

Emery  v.  D  unbar. 

merely  for  the  benefit  of  the  ship  owner,  and  forms  no  part  of 
the  contract,  and  is,  in  fact,  nothing  more  than  an  order  of  the 
consignor  to  his  agent  the  consignee,  to  pay  the  freight  for 
him  "  (1  Parsons  Maritime  Law,  221,  in  fin.  and  cases  cited  in 
note  3). 

W.  McDermot,  for  respondents. 

I.  It  is  well  settled  that  a  shipper  is. not  entitled   to  freight 
unless  upon  completion  of  the  voyage  and  performance  of  the 
contract ;  and  that  upon  the  ground  that  freight  is  payment  for 
a  service  rendered  in  carrying  goods  to  a  given  point ;  and  that 
until  the  completion  of  the  voyage,  the  service   is   not  per- 
formed (Barker  v.  Chariot,  2  John.,  352  ;  Penoyer  v.  Hallett, 

15  John.,  332  ;  Scott  v.  Lilly,  2  John.,  336 ;  Abbott  on  Ship- 
ping, 319  ;  3  Kent's  Com.,  298,  302  ;  Liddard  v.  Lopes,  10  East, 
526. 

II.  It  is  also  well  settled  for  the  same  reasons,  that  freight 
paid  in  advance  may  be  recovered  back  where  the  goods  have 
not  been  delivered,  or  the  voyage  broken  up  (Philips  v.  Wil- 
liamson, 5  Sand.,  578).     The  same  principle  is  held  in  the  case 
of  a  building  contract  when  the  building  is  destroyed  by  fire 
before  completion  (Tompkins  v.  Dudley,  25  N.  Y.  R.,  275). 

III.  A  custom  or  usage  cannot  overturn  well  settled  rules  of 
law,  or  vary  the  effect  of  a  contract  (Livingston  v.  Ten  Broeck, 

16  Johns.,  14 ;  Parsons  v.  Miller,  15  Wend.,  561 ;   Bogert  v. 
Cauman,  Anth.  N.  P.,  97;  Woodruff  v.  Merchant's  Bank,  25 
Wend.,  673;  Hone  v.  Mutual  Safety  Ins.  Co.,  1  Sand.,   150; 
Beals  v.  Terry,  2  Sand.,  130  ;  Mutual  Safety  Ins.  Co.  v.  Howe, 
2  Com.,  235  ;  Bowen  v.  Newell,  4  Seld.,  190;  Otsego  Co.  Bank 
v.  Warren,  18  Barb.,  290 ;  Vail  v.  Rice,  1  Seld.,  155  ;  Suydam 
v.  Hark,  2  Sand.,  133 ;  Smith  v.  Lynes,  3  Sand.,  203  ;   Dalton 
v.  Daniels,  2  Hilt.,  474  ;  Stewart  v.  Ranney,  26  How.  Pr.,  279 ; 
Case  of  Schooner  Reeside,  2  Sumner,  567). 

BY  THE  COURT. — DALY,  F.  J. — It  is  a  well  settled  rule  of 
law  that  if  freight  is  paid  in  advance,and  in  consequence  of  the  cap- 
ture or  shipwreck  of  the  vessel,  or  other  cause  beyond  the  con- 
trol of  the  master  or  owners,  the  goods  are  not  carried,  to  the 
place  of  destination,  the  freight  is  not  earned,  and  may  be  re- 
covered back,  unless  a  special  agreement  was  made  to  tha 


NEW  YORK— FEBRUARY,   1865.  411 

Emery  v.  D  unbar. 

contrary.  This  was  expressly  adjudged  to  be  the  law  in  Wat- 
son v.  Duyklnck  (3  Johns.  R.,  337).  It  is  shown  by  a  passage  in 
Chirac  to  have  been  a  prevailing  maritime  rule  when  that 
work  was  published  in  1671 ;  Lts  Us  ct  Coutumes  de  la  Mer 
Jugemen  JD'Oleron,  p.  42  ;  and  as  such  it  was  incorporated,  ten 
years  afterwards,  in  the  celebrated  marine  ordinances  of 
France  in  these  words,  "  No  freight  shall  be  due  for  goods  lost 
by  shipwreck  or  taken  by  pirates  or  enemies  ;  and  in  that  case 
the  master  shall  be  obliged  to  return  what  has  been  advanced 
to  him,  except  there  be  some  agreement  to  the  contrary."  Art. 
XYIII.  It  was  held  to  be  the  law  in  England  in  Mas/liter  v. 
JSutter  (1  Camp.  R.,  84).  In  Massachusetts  in  Griggs  v.  Aus- 
ten (3  Pick.,  20),  and  again  adjudged  in  this  State,  to  be  the 
law  in  Phelps  v.  Williamson  (5  Sandf.,  578). 

Where  a  general  rule  or  principle  of  law  like  this  has  been 
long  and  well  established,  it  cannot  be  controlled  by  proof  of 
any  usage  to  the  contrary  (Hone  v.  Mutual,  Insuran  e  Co.,  1 
Sandf.  S.  C.  R.,  149 ;  frith  v.  jBarlcer,  2  Johns.  R.,  327 ;  Rqn- 
Icin  v.  The  American  Ins.  Co.,  1  Hall  R.,  619  ;  Bowen  v. 
NeweU,  4  Seld.  R.,  195  ;  Schieffelin  v.  Harvey,  Anthon's  N.  P. 
R.,  note  1,  2ded.,  p.  80). 

This  disposes  of  the  defendant's  answer,  which  was  an  at- 
tempt to  set  up  that  by  an  "  immemorial  custom  and  usage  in 
the  United  States,  and  in  the  State  of  New  York,"  freight  is  not 
repaid  in  such  a  case,  but  is  retained  by  the  ship  owner. 

Judgment  was  therefore  properly  given  for  the  plaintiff  on 
demurrer,  and  the  decision  at  Special  Term  must  be  affirmed. 

Judgment  affirmed. 


412  COUKT  OF  COMMON  PLEAS. 


Rowan  v.  Buttman. 


JM.. '{    J    K'vV    ,'  • 

JESSE  C.  KOWAN  and  JAMES  M.  KOWAN  v.  DIEDKICH  II. 
BDTTMAN. 

If  goods  sold  to  an  agent  have  come  to  the  use  of  his  principal,  the  seller, 
upon  discovering  the  principal,  may  require  payment  of  him,  although  he 
instructed  the  agent  not  to  purchase  on  credit,  unless  the  principal  can  show 
that  it  would  change  the  state  of  accounts  between  himself  and  his  agent  to 
his  prejudice.  It  would  be  otherwise,  however,  if  the  seller  gives  the 
credit  exclusively  to  the  agent,  as  when  he  hears  of 'the  existence  of  the 
principal,  and  yet  debits  the  goods  to  the  agent. 

Where  a  person  carrying  on  a  bakery,  with  all  the  external  appearance  of 
ownership,  and  representing  himself  to  be  the  owner,  purchases  a  quantity 
of  flour  which  was  used  in  the  business,  and  it  appeared  that  he  was  for- 
merly the  owner  of  the  bakery,  that  he  became  embarrassed,  and  that  he 
had  entered  into  a  written  agreement  with  the  defendant,  who  was  in  ano- 
ther business,  declaring  that  the  defendant  was  the  owner  of  the  stock 
in  trade,  and  the  fixtures — that  he  was  to  manage  and  carry  on  the  business 
for  the  defendant  at  twelve  dollars  per  week,  and  if  the  net  profits  ex- 
ceeded that  sum,  then  he  was  to  have  a  certain  proportion  of  them — the 
whole  transaction  having  the  appearance  of  one  of  the  ordinary  contriv- 
ances by  which  a  debtor,  with  the  aid  of  a  secret  principal,  attempts  to 
evade  the  payment  of  his  debts — Held,  that  the  defendant  was  liable  to  the 
plaintiff,  though  he  testified  that  there  was  a  verbal  agreement  that  the 
agent  was  to  buy  only  for  cash,  and  that  when  he  wanted  money  for  flour, 
that  he  was  to  come  to  him  for  it. 

APPEAL  by  the  defendant  from  a  judgment  of  the  Marine 
Court  at  General  Term. 

The  action  was  brought  to  recover  the  value  of  sixty  barrels 
of  flour,  alleged  to  have  been  purchased  of  the  plaintiff  by  the 
defendant  by  and  through  his  clerk  and  agent,  T.  Oesf,  in  May 
and  July,  1862. 

The  answer  set  up  that  any  flour  purchased  of  the  plaintiffs 
by  Oest,  was  purchased  by  him,  and  was  sold  to  him  by  the 
plaintiffs  on  his  own  credit,  and  without  any  power  or  au- 
thority from  the  defendant 'to  purchase  the  same. 

It  appeared  on  the  trial  that  the  defendant,  who  had  been 
proprietor  of  the  Washington  Bakery,  in  September.  1861,  en- 
tered into  a  written  agreement  with  Oest,  whereby  it  was  de- 
clared that  the  defendant  was  the  owner  of  the  stock  in  trade 


YORK— FEBRUARY,  1865.  413 


Rowan  v.  Buttman. 


and  fixtures,  and  agreed  that  in  consideration  of  one  dollar  in 
hand  paid,  and  of  twelve  dollars  per  week,  Oest  would  "  de- 
vote his  whole  time  and  attention  in  and  about  the  manage- 
ment and  carrying,  on  of  said  business  [the  "Washington  Bake- 
ry,] at  the  aforesaid  place,  and  to  the  utmost  of  his  skill  and 
power,  exert  himself  for  the  benefit  and  interest  of 'the  party 
of  the  first  part  [the  defendant]  in  carrying  on  the  same,"  &c. 
It  was  further  agreed  that  should  the  net  profits  of  the  busi- 
ness exceed  twelve  dollars  per  week,  Oest  should  receive  in 
addition,  one-fourth  of  such  excess ;  the  balance  to  be  accounted 
for,  and  paid  to  the  defendant. 

Oest  purchased  the  flour  of  the  plaintiffs  upon  representa- 
tions that  the  business  of  the  bakery  was  his,  and  that  he  was 
responsible.  The  flour  thus  purchased  was  charged  to  Oest 
upon  the  plaintiffs'  books,  and  was  used  in  the  Washington 
Bakery. 

Subsequently  Oest  went  to  California,  and  the  defendant  by 
a  bill  of  sale  transferred  the  stock  in  trade  and  fixtures  of  the 
bakery  to  one  Buckman,  the  step-son  of  Oest. 

On  the  first  trial  the  complaint  was  dismissed.  On  appeal 
taken  to  the  General  Term  of  the  Court  below,  a  new  trial  was 
ordered,  and  on  such  new  trial,  the  cause  being  submitted  on 
the  same  testimony,  judgment  was  rendered  for  the  plaintiff. 
The  General  Term  having  affirmed  this,  the  defendants  ap- 
pealed to  the  Common  Pleas. 

D.  T.  Walden,  for  appellant. 
G-.  R.  Walton,  for  respondents. 

BY  THE  COTJET. — DALY,  F.  J. — It  appeared  that  Oest  carried 
on  the  same  business,  at  the  same  place,  under  the  same  title, 
that  of  the  Washington  Bakery,  for  at  least  fourteen  months  an- 
terior to  the  agreement  in  writing  entered  into  between  him 
and  the  defendant.  In  this  agreement  the  defendant  is  de- 
clared to  be  the  owner  of  the  fixtures  and  of  the  stock  in 
trade,  and  by  it  Oest  agrees  to  carry  on  the  business  for  the  de- 
fendant's benefit,  who  was  a  grocer,  at  the  compensation  of 
twelve  dollars  a  week,  and  one-fourth  of  the  profits  that  might 
be  realized  beyond  that.  How  or  when  the  defendant  became 
the  owner  of  the  fixtures  and  of  the  stock  in  trade,,  did  not  ap- 


4U  COURT  OF  COMMON  PLEis. 


Rowan  v.  Buttman. 


pear ;  but  when  Oest  left  for  California,  a  few  weeks  after  the 
last  load  of  flour  was  delivered,  the  defendant  gave  a  bill  of  sale 
of  the  fixtures,  stock  in  trade,  tools,  &c.,  to  a  step-eon  of  Oest — 
so  that  the  whole  transaction  looked  very  like  one  of  those  ordi- 
nary contrivances  by  which  a  debtor,  with  the  aid  of  a  secret 
principal,  fceeks  to  get  rid  of  the  responsibility  of  paying  his 
debts.  Be  that  as  it  may,  the  arrangement  between  defendant 
and  Oest  was  such  as  to  enable  the  latter  to  continue  and  carry 
on  the  business  with  the  outward  indication  of  apparent  owner- 
ship, of  which  he  made  ample  use  by  representing  to  the  plain- 
tiffs that  he  was  the  owner  of  the  business,  upon  which  repre- 
sentation they  sold  him  about  four  hundred  dollars'  worth  of 
flour  upon  credit,  all  of  which  was  delivered  at  the  bakery,  and 
baked  up.  The  plaintiffs  had  previously  sold  Oe'st  flour  for  cash 
— and  when  he  sought  to  buy  upon  credit,  they  made  inquiries 
about  him  ;  and  as  he  was  recommended  to  them  by  other  par- 
ties, and  represented  himself  to  be  the  owner  of  the  business, 
they  gave  him  flour  upon  credit  at  three  different  periods  be- 
tween the  20th  of  May  and  the  1st  of  July,  1862.  In  a  fortnight 
after  the  last  load  was  delivered,  Oest  left  for  California,  and 
in  a  week  afterwards  the  defendant  made  the  bill  of  sale  to 
Oest's  step-son.  ••*'  • 

The  defendant  testified  that  after  the  written  agreement  was 
entered  into  between  him  and  Oest,  he  made  a  verbal  agree- 
ment with  the  latter  that  he  was  to  buy  for  cash  only  ;  that  if 
he  wanted  money  he  was  to  come  to  him,  and  that  he  gave  him 
three  hundred  dollars  to  buy  flour  from  the  plaintiffs,  or  as  he 
stated  it,  "  to  pay  for  flour  in  Broad  street."  But  the  testimony 
upon  this  point  left  it  uncertain  whether  the  three  hundred  dol- 
lars, if  it  ever  had  been  given,  was  for  the  flour  bought  upon 
credit,  or  for  that  which  Oest  had  previously  purchased  of  the 
plaintiffs  for  cash,  as  the  defendant  stated  that  he  did  not  know 
when  he  gave  it.  His  evidence  appears  to  have  been  regarded 
by  the  justice  as  unsatisfactory,  and  it  was  of  such  a  loose  and 
•uncertain  nature  as  to  entitle  the  justice,  in  my  opinion,  to  dis- 
regard or  disbelieve  it. 

It  was  said  by  my  former  colleague,  Judge  WOODKUFF,  in  Fish 
v.  Wood,  4  E.  D.  Smith  R.,  329,  where  goods  purchased  by  an 
agent  in  his  own  name,  even  without  express  authority,  (if  not 
purchased  upon  his  exclusive  credit,)  have  come  to  the  use  of 


NEW  YORK— FEBRUARY,  1865.  415 


Rowan  v.  Buttman. 


the  principal,  which,  is  the  case  here,  the  vendor,  on  discovering 
the  principal,  may  require  payment  of  him.  What  Judge 
Woodruff  meant  by  a  purchase  upon  the  exclusive  credit  of  the 
agent,  may  be  illustrated  by  the  cases  of  Paterson  v.  Gandasequi, 
15  East,  62,  and  Addison  v.  Gandasequi,  4:  Taun.,  574,  in  which 
the  seller,  knowing  who  the  principal  was,  debited  the  goods  to 
the  agent,  thereby  indicating  that  he  sold  them,  not  upon  the 
responsibility  of  the  principal,  but  exclusively  upon  the  credit  of 
the  agent.  In  such  a  case  the  seller,  with  a  full  knowledge  of 
the  facts,  concludes  to  look  to  the  agent  and  not  to  the  princi- 
pal— and  having  thus  made  his  election,  the  contract  is  exclu- 
sively with  the  agent. 

The  rule  which  applies  in  a  case  like  the  one  now  before  us, 
was  comprehensively  stated  by  Lord  TENDEEDEN  in  Thompson  v. 
Davenport,  9  B.  &  C.,  78.  "  I  take  it,"  he  says,  "  to  be  a  gene- 
ral rule,  that  if  a  person  sells  goods,  supposing  at  the  time  of 
the  contract  that  he  is  dealing  with  a  principal,  but  afterwards 
discovers  that  the  person  with  whom  he  is  dealing  is  not  the 
principal  in  the  transaction,  but  agent  for  a  third  person,  though 
he  may  in  the  mean  time  have  debited  the  agent  with  it,  he  may 
afterwards  recover  the  amount  from  the  principal,  subject  how- 
ever to  this  qualification — that  the  state  of  the  accounts  between 
the  principal  and  agent  is  not  altered  to  the  prejudice  of  the 
principal." 

But  to  bring  the  principal  within  this  qualification  it  must 
clearly  appear  that  he  would  be  damnified,  as  where  he  has  set- 
tled with  the  agent  upon  the  warrantable  assumption  that  he 
was  answerable  to  him  ( Wyatt  v.  The  Marquis  of  Hertford,  3 
East  R.,  147  ;  Cheever  v.  Smith,  15  John.  R.,  276 ;  RatJibone  v. 
Tucker,  15  Wend.,  498) ;  and  in  Nelsons.  Powell  (3  Doug.  410), 
the  principal  was  held  responsible  for  a  balance  due  upon  a  sale 
of  goods  made  to  the  agent  in  his  own  name,  even  though  he 
had  remitted  to  the  agent  the  money  to  pay  for  them. 

In  the  present  case  the  flour  went  to- the  defendant's  use,  and 
he  could  not  be  damnified  unless  he  had  given  out  the  money  to 
pay  for  it — a  point  upon  which  the  testimony  was  not  sufficient 
ly  clear  to  warrant  our  disturbing  the  finding  of  the  justice. 

The  judgment  should  be  affirmed. 


416  COURT  OF  COMMON  PLEAS. 


Hyde  v.  Van  Valkenburgh. 


WILLIAM  H.  HYDE  and  JOHN  S.  HYDE  v.  AAEON  YAN 
VALKENBURGH. 

A  plaintiff  cannot  anticipate  that  a  person,  jointly  liable  with  the  defendant, 
would  avail  himself,  if  made  a  party  to  the  suit,  of  the  defence  of  the  Stat- 
ute of  Limitations,  and  on  that  ground  omit  to  make  such  person  a  party 
defendant. 

To  justify  the  omission  of  a  person  as  a  party  defendant  in  an  action  against 
a  co-partner  on  a  partnership  obligation,  it  must  appear  by  averments  in  the 
complaint,  which  lead  to  no  other  conclusion,  that  the  legal  obligation  of 
such  person  had  absolutely  ceased. 

APPEAL  by  the  defendant  from  an  order  made  at  Special 
Term  directing  judgment  for  the  plaintiffs  on  the  ground  that 
defendant's  demurrer  was  frivolous  ;  and  also  from  the  judg- 
ment entered  on  said  order. 

The  complaint  sets  out  several  notes  made  by  the  defendant 
and  his  then  co-partner,  one  John  R.  Cooper,  under  their  firm 
name  of  Yan  Yalkenburgh  &  Co. ;  that  the  said  co-partnership 
has  been  dissolved,  and  that  since  such  dissolution,  and  within 
six  years,  the  defendant  had  made  payments  on  said  notes. 

The  complaint  also  contained  the  following  allegation : 

"  Plaintiffs  further  show,  that  the  causes  of  action  hereinbe- 
fore set  forth,  accrued  more  than  six  years  before  the  com- 
mencement of  this  action,  and  that  by  reason  thereof,  the  said 
John  R.  Cooper  is  not  joined  as  a  party  defendant  herein,  as 
he  is  discharged  by  the  Statute  of  Limitations." 

The  defendant  demurred  on  the  ground  of  defect  of  parties 
defendant ;  judgment  was  ordered  for  the  plaintiffs  on  the 
ground  that  the  demurrer  was  frivolous.  The  Court  was  asked 
to  permit  the  defendant  to  answer,  which  request  was  refused, 
and  thereupon  the  defendant  appealed. 

JR.  H.  Huntley,  for  appellant. 

I.  Although  the  Statute  of  Limitations  had  run  against 
Cooper,  that  did  not  extinguish  the  debt  as  to  him.  The 
Statute  of  Limitations  proceeds  upon  the  expediency  of  refns- 


NEW   YOKK— FEBRUARY,  1865.  417 

Hyde  v.  Van  Valkenburgh. 

ing  to  enforce  a  stale  claim,  and  not  upon  Jthe  probability 
that  a  stale  claim  has  been  paid.  It  is  a  statute  of  repose,  and 
not  of  presumption  (1  Parsons  on  Contracts,  343).  The 
statute  therefore  recognizes  the  existence  of  the  debt,  but  con- 
siders it  inexpedient  to  revive  it  after  a  certain  length  of  time. 
(Chitty  on  Contr.,  806 ;  Winchell  v.  Bowman,  21  Barb.,  448  ;  Es- 
selstyn  v.  Weeks,  2E.  D.  Smith,  119 ;  12  KY.,  637;  Clark  v.  At- 
kinson, 2  E.  D.  Smith,  114 ;  Sands  v.  St.  John,  23  How.  Pr.,  140. 

II.  The  original  contracts  (the  notes  in  suit)   are  joint  con- 
tracts, and  therefore  "  the  joint  contractors  must  all  be  sued, 
although  one  has  become  bankrupt  and  obtained  his  certificate, 
for  if  not  sued  the  others  may  plead  in  abatement "  (1  Chitty 
Pleadings,  42  Slocum  v.  Hooker,  13  Barb.,  536).     In  this  case, 
Cooper  should  have  been  joined  in  the  action,  for  he  might  not 
have  availed  himself  of  his  defence  by  pleading  the  Statute  of 
Limitations. 

III.  It  is  evident  that  had  there  been  no  payment  by  the 
defendant,  the  action  might  have  been  brought  against  both 
defendants.     But  clearly  in  this  case,  both  co-partners  must  be 
joined,  and  both  might  interpose  the  statute   as  a  defence. 
And  this  proves  conclusively  that  in  the  present  case  both  part- 
ners should  have  been  joined.    The  contract  was  joint,  and  the 
joint  contractors  were  entitled  to  be  sued  together,  and  to  inter- 
pose any  defence  they  may  have  to  the  action. 

IY.  Assuming  that  the  statute  is  a  valid  defence  as  to 
Cooper,  and  severs  the  contract  so  that  his  co-partner  may  be 
sued  alone,  the  complaint  must  show  that  Cooper's  defence  is 
complete,  by  alleging  thut  he  has  done  nothing  to  avoid  this 
defence,  as  by  part  payment,  new  promise  or  absence  from  the 
State. 

Plait,  Gerard,  and  Buckley,  for  respondents. 

I.  A  demurrer  is  frivolous  which  demurs  on  a  ground 
already  conclusively  decided  by  reported  cases  (Bank  of  Wil- 
mington v.  Barnes,  4  Abb.,  226 ;  Phelps  v.  Ferguson,  9  Id., 
206  ;  Strong  v.  Stevens,  4  Duer,  668).  It  has  been  conclusively 
decided  that  a  payment  by  one  partner,  or  joint  maker,  does 
not  revive  the  liability  as  to  the  other  (Bloodgood  v.  Brucn,  8 
N.  Y.,  362  ;  Shoemaker  v.  Benedict,  11  N.  Y.,  176  ;  Bogert  v. 
27 


418  COURT  OF  COMMON  PLEAS. 

Hyde  v.  Van  Valkenburgh. 

Vermilyea,  10  Barb.  32  ;  Van  Keuren  v.  Parmlee,  2  N.  Y., 
523 ;  N.  T.  Life  Ins.  Co.  v.  Covert,  29  Barb.,  435  ;  WincheU 
v.  Hicks,  18  N.  Y.,  558).  Therefore,  this  demurrer  being  iu 
the  teeth  of  all  these  decisions,  is  frivolous. 

II,  As  to  severing,  against  a  joint  debtor.     Even  in  case  of 
a  joint  debtor  being  out  of  the  State,  you  can  sue  the  joint 
debtor  in  the  State  alone  (Brown  v.  Birdsall,  29  Barb.,  549). 
Much  more  when  the  cause  of  action  against  one  party  is  en- 
tirely gone.     As  soon  as  the  Statute  of  Limitations  arises,  the 
joint  liability  is  technically  severed  and  gone.     The  new  lia- 
bility is  several  and  distinctive,  and  arises  on  the  new  promise 
based  on  the  old  moral  consideration.   The  former  joint  parties 
are  no  longer  united  in  interest  ( Van  Alen  v.  Feltz,  32  Barb., 
139  ;  WincheU  v.  Hicks,  18  N.  Y.,  560). 

III.  It  is  allowable  under  the  Code  for  a  plaintiff  to  set  forth 
a  defence,  and  make  averments  avoiding  it,  although  there  are 
decisions  that  it  is  not  necessary.     But  here  we  do  not  set  up  a 
defence  as  to  the  party  sued,  but  a  legal' reason  for  not  suing  a 
party  not  sued  (Bloodgood  v.  Bruen,  4  Selden,  372). 

DALY,  F.  J. — I  agree  that  the  order  made  at  Special  Term 
should  be  reversed.  The  cases  of  jBoviU  v.  Wood,  2  M.  &  S., 
23,  and  Slocum  v.  Hooker,  13  Barb.,  536,  and  Wilmsby  v. 
Lindenberger,  2  Rand.,  478,  are  decisive  upon  the  point  that  a 
plaintiff  cannot  anticipate  that  a  defendant  will  avail  himself 
of  a  defence  of  this  character.  He  may  have  another  defence 
to  the  note,  and  if  he  have,  and  establish  it,  he  may  plead  the 
judgment  as  a  bar  to  any  other  action,  an  advantage  of  which 
he  would  be  deprived,  if  the  plaintiff  were  allowed  to  bring 
the  action  against  the  other  co-partner  alone.  The  contract  is 
a  joint  one,  and  no  inconvenience  can  arise  from  requiring  the 
plaintiff  to  bring  the  action  against  both  partners,  for  if  Cooper 
should  set  up  the  Statute  of  Limitations,  a  defence  of  which 
he  may  or  may  not  avail  himself,  the  plaintiff  would  be  allowed 
to  discontinue  as  to  him,  without  costs  (Ex  parte  Nelson,  1 
Cow.  R.,  417  ;  2  Rev.  Stat.,  616,  §  20 ;  Code  §  306  ;  Ludlow  v. 
Hackett,  18  Johns.,  252  ;  Slocum  v.  Hooker,  13  Barb.,  540). 

The  order  should  be  reversed. 


NEW   YORK— FEBRUARY,   1860.  419 

Kelso  v.  Kelly. 

BRADY,  J. — The  allegation  intended  to  justify  the  omission  to 
make  the  defendant  Cooper  a  party,  is  not  broad  enough.  As- 
suming it  to  be  a  sufficient  statement  that  he  was  not  absent 
from  the  State,  and  therefore  that  the  running  of  the  Statute 
of  Limitations  was  not  intermitted,  it  is  deficient  because  it 
does  not  also  state  that  he  neither  made  a  payment,  which, 
prevented  the  operation  of  the  statute  named,  nor  a  new 
promise  to  pay.  It  does  not  follow  from  a  mere  expiration  of 
six*years,  that  the  remedy  of  the  plaintiffs  against  Cooper 
was  destroyed,  and  it  is  the  right  of  the  other  defendant  to 
have  him  joined,  unless  he  has  been  discharged  by  law.  That 
the  legal  obligation  of  Cooper  has  ceased,  if  it  form  a  basis  of 
proceeding  against  his  co-partner  alone,  must  appear  by  aver- 
ments which  lead  to  no  other  conclusion.  For  these  reasons  I 
think  the  order  at  Special  Term  should  be  reversed  with  ten 
dollars  costs,  to  abide  the  event  of  this  action. 
r  i*  ••  • 

CABDOZO,  J.,  concurred. 

Order  reversed. 


LEONORA  P.  KELSO  and  WILLIAM  R.  MCCREADT  v.  ELIZABETH 

KELLY. 

• 

Where  a  valid  contract  has  been  entered  into  for  the  renewal  of  a  lease,  by 
which  it  is  provided  that  the  amount  of  rent  to  be  paid  shall  be  settled  by 
arbitration,  and  either  party  refuses  to  appoint  an  arbitrator,  a  court  of 
equity  will  compel  a  specific  performance,  and  order  a  reference  to  ascertain 
what  the  amount  of  rent  should  be. 

A  lease,  executed  by  the  plaintiffs  to  one  K.  for  a  term  of  five  years,  contain- 
ed a  provision  that  the  lessee  "  might  have  the  privilege  of  a  further  lease  of 
the  premises  for  five  years,  the  rent  to  be  fixed  by  two  persons,  chosen," 
&c.  Before  the  expiration  of  the  lease,  the  lessee  died,  and  the  defendant, 
his  devisee  and  the  sole  executrix  of  his  will,  entered  and  continued  in  pos- 
session of  the  premises  until  after  the  expiration  of  the  term  of  the  lease. 
The  defendant  and  an  agent  of  the  plaintiffs,  but  without  the  plaintiffs'  au- 
thority, appointed  a  person  each,  who  agreed  upon  a  rent  to  be  paid  by  tho 
defendant  for  the  renewed  term.  The  plaintiffs  refused  to  ratify  the  act  of 
the  agent,  and  notified  the  defendant  that  they  were  ready  to  proceed  by 


420  COURT  OF  COMMON  PLEAS. 

Kelso  v.  Kelly. 

arbitration,  as  provided  by  the  lease.  The  defendant  refused  to  appoint  an 
arbitrator.  In  an  action  to  have  the  alleged  arbitration  declared  void,  and  to 
have  the  rent  for  the  renewed  term  fixed  under  the  direction  of  the  Court,— 
Held,  on  a  demurrer  to  the  complaint,  that  the  action  was  maintainable. 

The  continuing  in  possession  by  the  defendant  after  the  expiration  of  the 
lease,  was  equivalent  to  an  election  to  take  the  further  lease ;  and  by  such 
election  the  covenant  to  appoint  arbitrators  became  binding  upon  both 
parties. 

On  the  refusal  of  the  lessee,  therefore,  to  appoint  an  arbitrator,  as  the  lessor 
could  not  give  a  new  lease  until  the  amount  of  the  rent  should  be  fixedj  the 
lessor  is  entitled  to  the  equitable  aid  of  the  court  to  ascertain  it. 

If  the  remedy  which  a  party  may  have  at  law  will  not  put  him  in  a  situation 
as  beneficial  to  him  as  if  the  agreement  were  specifically  performed,  relief 
will  be  afforded  in  equity. 

APPEAL  by  defendant  from  an  order  overruling  a  demurrer 
to  the  complaint. 

.  The  complaint  alleges  that  in  April,  1858,  the  plaintiff  and 
one  G.  G-.  Waters,  as  trustee  of  E.  M.  McCready,  leased  to  Wil- 
liam Kelly  the  front  and  rear  rooms  of  the  rear  building  of 
Nos.  817  and  819  Broadway  for  five  years,  at  a  rent  of  eight 
hundred  dollars  per  annum,  with  the  privilege  of  a  further 
lease  for  five  years,  at  a  rent  to  be  fixed  by  two  persons  to  be 
chosen  by  each  party — if  the  two  could  not  agree,  they  to 
choose  a  third.  The  rent  under  such  renewed  lease  was  to  be 
not  less  than  eight  hundred  dollars  per  annum. 

William  Kelly  occupied  the  premises  until  March,  1862, 
when  he  died,  leaving  a  will,  whereby  he  devised  all  his 
property  to  the  defendant,  and  appointed  her  sole  executrix. 
The  defendant  entered  into  possession  of  the  premise*,  and  con- 
tinued up  to  the  commencement  of  the  action. 

In  January,  1863,  one  J.  S.  Kelso,  who  acted  as  agent  for  tlie 
plaintiffs  in  collecting  and  letting  the  premises,  negotiated 
with  the  defendant  as  to  the  rent  of  that  portion  of  the  demised 
premises  for  a  renewed  term  of  five  years  from  May  1st,  ISfiS, 
and  being  unable  to  agree,  he  and  defendant  appointed  arbi- 
trators to  fix  the  same.  These  arbitrators,  without  consulting 
with  the  said  Kelso,  or  examining  witnesses,  &c.,  agreed  upon 
twelve  hundred  dollars  rent  per  annum  for  the  renewal  term. 
The  arbitrators  made  an  indorsement  on  the  lease,  the  precise 


NEW  YORK— FEBRUAKY,  1SG*5.  421 

Kelso  v.  Kelly. 

terms  of  which  were  unknown  to  the  plaintiffs.  The  plaintiffs 
claim  that  the  said  Kelso  in  arbitrating  had  no  other  authority 
than  that  of  letting  and  collecting.  That  they  refused  to  ratify 
his  acts  in  this  particular,  and  had  notified  the  defendant  to  that 
effect,  and  that  they  were  ready  to  proceed  to  arbitration,  as 
provided  in  the  lease.  The  defendant  refused  to  proceed  to 
such  arbitration  or  to  surrender  the  use  of  the  premises. 

The  prayer  of  the  complaint  is,  that  the  pretended  appoint- 
ment of  arbitrators,  and  all  the  proceedings  thereunder,  be  de- 
clared void,  and  the  rent  for  the  renewed  term  be  fixed  under 
the  direction  of  the  court. 

The  defendant  demurred  to  the  complaint,  as  not  showing 
facts  sufficient  to  constitute  a  cause  of  action.  Judgment  was 
ordered  for  plaintiffs  on  the  demurrer. 

The  defendant  appealed  to  the  General  Term. 

Stilwell  &  Swain,  for  appellant. 
A.  F.  Cushman,  for  respondents. 

BY  THE  COURT. — DALY,  F.  J. — The  averment  in  the  com- 
plaint is  that  John  S.  Kelso  had  not  authority  to  select  an  arbi- 
trator to  determine  what  the  rent  under  the  renewed  lease 
should  be,  other  than  his  general  authority  to  let  and  collect 
rents.  This  would  not  be  sufficient  to  authorize  him  to  appoint 
an  arbitrator  for  the  plaintiffs,  and  the  proceedings  on  the 
part  of  the  arbitrators  were  without  authority,  and  not  binding 
upon  the  plaintiffs. 

The  plaintiffs  aver  further  that  they  notified  the  defendant 
that  they  would  not  be  bound  by  the  award,  and  that  they 
were  ready  to  proceed  with  the  arbitration,  as  provided  by  the 
lease,  but  that  the  defendant  refused  ;  and  as  in  consequence 
of  that  refusal,  they  cannot  have  the  rent  fixed  in  the  manner 
prescribed  by  the  lease,  they  ask  that  the  Court  shall  ascertain 
and  fix  it. 

"Where  a  valid  contract  has  been  entered  into  for  the  renewal 
of  a  lease,  by  which  it  is  provided  that  the  amount  of  rent  to 
be  paid  shall  be  settled  by  arbitration,  and  the  party  who  is  to 
give  the  lease  refuses  to  appoint  an  arbitrator,  a  court  of  equity 
will  compel  a  specific  performance,  and  order  a  reference  to 
ascertain  what  the  amount  of  the  rent  should  be.  This  was 


422  dbURT  OF  COMMON  PLEAS. 

Kelso  v.  Kelly. 

held  in  the  cases  of  Gregory  v.  Mighell  (18  Yes.  328),  Gourlay 
v.  The  Duke,  of  Somerset  (19  Id.,  430),  Johnson  v.  Conger  (14 
Abbott,  195).  Jn  the  first  of  these  cases  there  was  a  parol 
agreement  for  a  lease  of  twenty-one  years,  the  amount  of  rent 
annually  to  be  fixed  by  two  indifferent  persons,  under  which  the 
lessee  entered  and  made  improvements.  This  was  regarded  as 
a  part  performance  of  the  contract,  which  took  the  agreement 
out  of  the  statute  of  frauds  ;  and  Sir  William  GRANT  held  that 
the  failure  of  the  arbitrator  to  fix  the  rent  could  not  affect  the 
agreement,  and  that  the  court  would  find  some  means  of  com- 
pleting its  execution.  A  specific  performance  was  accordingly 
decreed,  and  it  was  referred  to  a  master  to  ascertain  what  the 
rent  ought  to  be. 

In  the  next  case  (Gourlay  v.  The  Duke  of  Somerset)  a  lease 
was  to  be  given  with  such  condition  as  the  defendants'  steward 
should  judge  to  be  reasonable  and  proper ;  or,  in  the  event  of 
his  death,  by  some  other  person,  to  be  mutually  agreed  upon 
between  the  parties.  The  matter  having  been  brought  before 
the  court  by  a  bill  filed  by  the  tenant,  the  question  arose 
whether  the  lease  to  be  executed  by  the  defendant  should  be 
settled  by  his  steward,  or  by  a  master  of  the  court ;  and  Sir 
William  GRANT  held  that  when  the  agreement  to  give  a  lease 
is  binding,  and  such  as  ought  to  be  executed,  it  does  not  re- 
quire foreign  aid  to  carry  the  details  into  execution  ;  and  in  the 
last  case  (Johnson  v.  Conger),  it  was  expressly  held  by  the  Su- 
preme Court  of  this  district  at  General  Term,  that  where  there 
is  a  covenant  in  a  lease  for  a  renewal  which  one  party  is  bound 
to  give  and  the  other  to  accept,  the  rent  to  be  fixed  by  arbitra- 
tion, and  the  landlord  refuses  to  appoint  an  arbitrator,  the 
court  will  compel  the  performance  of  the  covenant,  either  by  a 
renewal  of  the  lease  at  the  old  rent,  or  will  ascertain  what 
should  be  the  rent. 

In  two  cases  in  this  State,  (  Whitefield  v.  Duffield,  Hoff.  C.  R., 
110,  and  Robinson  v.  Kettletas,  4  Edwds.  E.  67),  it  has  been  said 
that  if  the  rent  upon  a  covenant  of  renewal  is  left  to  be  deter- 
mined by  arbitration,  a  court  of  equity  will  not  compel  a  speci- 
fic performance  of  the  covenant.  The  last  of  these  cases  need 
not  be  examined,  as  it  is  founded  upon  the  authority  of  the 
first,  and  the  point  was  not  involved.  Nor  was  it  involved  in 
the  first  case,  Whitefield  v.  Duffield,  as  the  covenant  for  a  re- 


NEW  YORK— FEBRUARY,  1865.  423 

Kelso  v.  Kelly. 

newal  there  was,  that  a  new  lease  should  be  granted  for  twenty 
years  upon  such  terms  as  the  lessor  might  think  proper,  and  the 
lessee  might  approve,  which  was  held  void  for  uncertainty — as 
the  lessors,  if  they  thought  proper,  mighl;  tender  one  upon  such 
terms  as  to  make  it  impossible  for  the  lessee  to  approve  and  ac- 
cept— and  upon  the  ground  that  the  lessors  had  expressly  re- 
served to  themselves  the  privilege  of  settling  the  amount  and 
fixing  the  condition  according  to  their  own  notion  of  what  might 
be  their  interest.  The  decision  of  Vice-Chancellor  HOFFMAN  was 
sustained  by  the  Court  of  Errors  (Duffield  v.  Whitlock,  26 
Wend.,  55).  In  delivering  his  opinion  the  learned  Vice  Chan- 
cellor reviews  a  number  of  ^ases,  the  conclusion  from  which  is 
expressed  in  the  marginal  note  of  the  case  in  Hoffman's  Report, 
probably  written  by  Vice-Chancellor  HOFFMAN  himself,  to  this 
effect — "  A  distinction  exists  between  a  clause  to  grant  a  new 
lease  and  one  to  renew  the  lease.  In  the  latter,  there  is  an  im- 
plied covenant  to  give  a  new  one  for  the  same  terms,  rent,  and 
conditions.  The  rent  to  be  paid  is  as  essential  a  part  of  the 
contract  to  give  a  lease,  as  the  price  is  upon  a  contract  to  sell. 
If  the  agreement  does  not  contain  it,  and  it  is  not  supplied  by 
other  competent  evidence,  no  performance  can  be  enforced." 
And  in  the  course  of  his  opinion  he  says — "  The  rent  to  be  paid 
is  as  essential  a  part  of  the  contract  to  lease,  as  the  price  upon  a 
contract  to  sell."  The  inference  from  this  language  would  seem 
to  be  that  which  was  drawn  by  Vice-Chancellor  McCouN  in 
Robinson  v.  Keteltas,  supra,  that  if  the  implied  covenant  to 
renew  upon  the  same  terms  is  repelled  by  a  clause  in  the  cove- 
nant for  renewal,  declaring  that  the  rent  of  the  additional  term 
shall  be  fixed  by  arbitration,  the  covenant  is  left  uncertain  as  to 
the  amount  of  rent,  and  if  the  parties  refuse  to  arbitrate,  the 
Court  cannot  compel  a  performance  of  the  contract. 

This  is  directly  in  conflict  with  the  cases  that  have  been 
cited  from  Vesey,  which  are  not  referred  to  in  the  opinion  of 
Vice-Chancellor  HOFFMAN,  and  with  the  decision  of  the  Supreme 
Court  of  this  district.  Nor  do  any  of  the  cases  to  which  the  Vice- 
Chancellorhas  referred  warrant,  in  my  judgment,  such  a  conclusion. 
He  refers  especially  to  Clinan  v.  Cook  (1  Sch.  tfc'Lef.,  22),  but  in 
that  case  the  term  for  which  the  lease  was  to  be  given  was  not  men- 
tioned in  the  agreement,  and  the  Court  of  course  could  not  ascertain 
it.  But  if  the  rent  is  to  be  fixed,  not  by  the  parties  but  by  arbi- 


424  COCHX  OF  COMMON  PLEAS. 

Kelso  v.  Kelly. 

tration,  the  Court  can,  by  taking  proof,  ascertain  and  fix  it  with 
as  much  certainty  as  the  arbitrators  could  do ;  and  if  the  mode 
of  determining  it  by  arbitration  cannot  be  resorted  to  through 
the  refusal  of  one  of  the  parties  to  appoint  an  arbitrator,  there  is 
no  reason  why  the  other  party  should  lose  the  benefit  of  a  con- 
tract in  all  other  respects  valid,  and  binding,  when  the  Court  has 
the  means  of  fixing  what  so  eminent  a  judge  as  Sir  William 
GRANT  regarded  as  a  mere  matter  of  detail. 

In  this  case  the  covenant  for  a  renewal  formed  part  of  the 
original  lease,  and  was  valid — being  in  writing,  and  founded 
upon  a  consideration  sufficiently  expressed.  The  testator  was 
to  have  the  privilege  of  a  renewal  of  the  lease  for  a  further  term 
of  five  years ;  but  he  died  before  the  original  lease  expired,  and 
the  defendant,  who  is  his  widow,  his  sole  devisee,  and-  his  execu- 
trix, continued  in  possession  after  the  expiration  of  the  term, 
thereby  indicating  her  intention  to  avail  herself  of  the  benefit 
of  the  covenant  for  a  renewal.  It  was  equivalent  to  an  election 
to  take  the  further  lease  for  five  years,  a"nd  she  might  hold  the 
premises  subject  only  to  the  rent  reserved  by  the  original  lease, 
until  the  plaintifis  performed  their  covenant  by  executing  a  lease 
for  the  additional  term  (Jlolsman  v.  Abrams,  2  Duer,  446 ;  Van 
fiensselaer  v.  Penniman,  6  Wend.,  5C9  ;  Cure  v.  Crawford,  5 
How.,  293). 

The  plaintiffs  were  bound  to  give,  and  she  to  accept  a  new 
lease — for  if,  by  her  electing  to  continue  the  possession,  the  cov- 
enant became  binding  upon  the  one,  the  obligation  was  mutual, 
and  was  equally  binding  upon  the  other  (Platt  on  Covenants,  21 ; 
Holsman  v.  Abrams,  2  Duer,  447). 

But  the  plaintiff  cannot  give  the  new  lease  until  the  amount 
of  the  rent  is  fixed,  and  as  the  defendant  will  not  appoint  an  ar- 
bitrator, the  plaintiffs  are  entitled  to  the  -equitable  aid  of  the 
Court  to  ascertain  it — that  being  the  only  mode  under  the  cir- 
cumstances in  which  it  can  be  ascertained  and  fixed.  The  re- 
lief sought  is  purely  of  an  equitable  nature,  to  which  the  plain- 
tiffs are  entitled  if  they  have  no  adequate  legal  remedy. 

It  is  suggested  that  if  the  defendant  will  not  appoint  an  arbi- 
trator, the  plaintiffs  are  not  bound  to  give  a  new  lease — but  this 
would  be  to  suffer  her  to  remain  in  possession,  subject  to  the 
former  rent,  which  the  plaintiffs  may  not  think  adequate ;  or  it 
is  suggested  that  if  she  has  broken  the  covenant  by  refusing  to 


NEW  YORK— FEBRUARY,   1865.  425 

O'Meara  v.  The  Mayor,  &c.  of  New  York. 

appoint  an  arbitrator,  they  may  remove  her  from  the  possession 
by  taking  summary  proceedings  under  the  statute.  It  is  suffi- 
cient, without  stopping  to  inquire  whether  they  have  that  reme- 
dy or  not,  to  say  that  they  may  not  desire  to  take  back  the  pre- 
mises, but  prefer  that  the  defendant  should,  under  the  existing 
circumstances,  be  held  to  the  covenant  to  take  a  further  lease — 
and  if  the  equitable  aid  of  the  Court  is  necessary  to  put  the 
plaintiff  in  a  position  to  give  the  lease,  it  will  not  be  refused.  If 
the  remedy  which  the  party  may  have  at  law  will  not  put  him 
in  a  situation  as  beneficial  to  him  as  if  the  agreement  were  spe- 
cifically performed,  relief  will  be  afforded  in  equity  (Harriett  v. 
Fidding,  2  Sch.  &Lef.,  553). 

The  judgment  of  the  Special  Term  should  be  affirmed. 


PATRICK  O'MEARA  v.  THE  MAYOR,  ALDERMEN,  'and  COM- 
MONALTY OF  THE  Crry  OF  NEW  YORK. 

The  members  of  the  Fire  Department  of  the  City  of  New  York  owe  their 
allegiance  to  the  City,  not  as  members  of  a  corporation,  but  as  members  of 
an  organization  identified  with  the  administration  of  the  City  government, 
and  forming  a  part  of  its  protective  police. 

The  powers  exercised  by  the  city  corporation  in  reference  to  the  Fire  Depart-1 
ment,  are  conferred  and  employed  exclusively  for  the  public  benefit,  and 
the  corporation  cannot  be  held  liable  as  a  master  for  the  wrongful  acts  of 
firemen.  ,    , ' " 

The  plaintiff7,  while  standing  on  the  sidewalk,  was  knocked  down  and  run  over 
by  a  fire  engine  in  the  charge  of  firemen,  and  which  was  running  upon  the 
sidewalk  in  violation  of  a  city  ordinance  — Held,  that  the  city  corporation 
could  not  be  held  liable  for  the  injuries  occasioned  to  the  plaintiff  by  such 
negligent  act.  The  mere  fact  thai  the  firemen  bad  at  the  time  an  engine  in 
their  possession  by  the  authority  of  the  Mayor  and  Common  Council,  did 
not  create  the  relation  of  master  and  servant. 

APPEAL  by  the  defendants  from  a  judgment  entered  on  the 
verdict  of  a  jury. 

The  action  was  brought  to  recover  damages  for  a  personal 
injury  occasioned  to  the  plaintiff  by  the  carelessness  and  negli- 
gence of  the  defendants'  servants. 


426  COURT  OF  COMMON  PLEAS. 

O'Meara  v.  The  Mayor,  &c.  of  New  York. 

It  appeared  in  evidence  upon  the  trial,  that  the  plaintiff, 
while  standing  on  the  sidewalk  in  Park  Row,  was  knocked 
down  and  run  over  by  Steam  Fire  Engine  "No.  42,  which 
engine,  it  was  admitted,  belonged  to  the  Fire  Department  of 
the  City  of  New  York. 

The  engine,  at  the  time  of  the  injury  to  the  plaintiff,  was  in 
charge  of  the  members  of  the  company  to  which  it  belonged, 
and  was  running  upon  the  sidewalk  upon  which  the  plaintiff 
was  standing. 

A  motion  to  dismiss  the  complaint  at  the  close  of  plaintiff's 
case  having  been  denied,  tlie  defendants'  counsel  offered  in 
evidence  the  ordinances  of  defendants,  relative  to  the  Fire 
Department,  and  read  Section  53,  of  Art.  3,  Chap.  10,  of  the 
Rev.  Ord.  of  1859,  as  follows  : 

"  No  fire-engine,  nor  hook  and  ladder,  nor  hose  cart,  shall, 
"  in  going  to,  or  returning  from,  any  fire,  or  at  any  other  time, 
11  be  run,  driven,  wheeled,  or  placed  upon  any  sidewalk,  except 
"-by  the  special  order  of  one  of  the  engineers,  under  the  pen- 
"  alty  of  twenty-five  dollars  for  each  offense,  to  be  forfeited  and 
"  paid  by  every  person  aiding  or  assisting  in,  or  consenting  to 
"  the  violation  of  any  one  of  the  provisions  of  this  section,  to 
<(  be  recovered  by  the  Attorney  of  the  Corporation,  for  the  use 
"  of  the  Corporation  ;  and  also  under  the  further  penalty  of 
"  the  expulsion  of  the  foreman,  assistant-foreman,  and  all  the 
"  members  of  the  Company." 

The  defendants  then  rested,  and  again  moved  for  a  dismissal 
on  the  evidence.  The  motion  was  denied. 

The  question  whether  the  Corporation  of  the  City  was 
liable  or  not  for  the  acts  of  the  firemen,  was  a  point  retained 
by  the  Court  for  further  consideration,  and  the  question  of 
damages  was  submitted  to  the  jury. 

The  jury  rendered  a  verdict  for  the  plaintiff  for  $750,  and 
from  the  judgment  entered  thereon  the  defendants  appealed 
to  the  General  Term.  '  *  - 

John  E.  Develin,  for  appellants. 

I.  The  only  theory  upon  which  the  judgment  in  this  action 
can  be  sustained,  is  that  the  firemen  having  the  control  and 
management  of  the  engine,  at  the  time  of  the  injury  to  the 
plaintiff,  were  the  agents  OF  servants  of  the  defendants,  and 


NEW  YOKK— FEBRUARY,   1865.  427 

Q'Meara  v.  The  Mayor,  &c.  of  New  York. 

•were  acting  within  the  scope  of  their  authority,  or  within  the 
course  of  their  employment.  Now,  the  firemen  of  the 
City  of  New  York  are  neither  the  agents  or  servants  of  the  de- 
fendants, nor  have  the  defendants  any  voice  or  agency  in  their 
appointment  or  removal  (Laws  1855,  ch.  112,  p.  176 ;  Laws 
1861,  ch.  33,  p.  55). 

II.  The  fiict  that  the  injury  occurred  while  the  firemen  were 
engaged  in  the  violating  of  a  city  ordinance,  cannot  render4he 
defendants  liable  (Boyland  v.  Mayor,  1  Sandf.,  27  ;  Levy  v. 
Mayor,  Ib.,  467 ;  Griffin  v.  Mayor,  5  Seld.,  456 ;  Howe  v. 
City  of  New  Orleans,  12  La.,  481). 

Capron  &  Lake,  for  respondent. 

I.  The  Fire  Department  was  organized  by  the  Montgomerie 
Charter.  In  1789  it  was  incorporated  for  a  benevolent  pur- 
pose, "  and  for  the  purpose  of  extinguishing  fires."  This 
statute  has  been  continued  by  various  re-enactments,  the  last 
of  which,  passed  in  1858,  extends  its  provisions  to  the  year 
1880.  It  declares  all  firemen  of  the  city  to  be  members  of  the 
"  Fire  Department  of  the.  City  of  New  xork  (see  Da  vies'  Laws 
relating  to  the  City  of  New  York,  392  ;  Valentine's  Laws  relat- 
ing to  the  City  of  New  York,  748).  Jn  1806,  the  Legislature  sub- 
jected "  all  the  firemen  of  the  city  "  to  the  absolute  control  of 
the  municipal  authorities— no  language  could  be  more  compre- 
hensive for  such  a  purpose  than  that  which  the  Legislature 
employed  (Davies'  Laws,  427).  That  statute  has  never  been 
repealed,  nor  has  any  statute  containing  provisions  in  conflict 
with  that  grant  of  power  been  enacted. 

In  1813,  power  was  vested  in  the  municipality  to  appoint 
firemen.  That  statute  prescribes  their  duties  and  liabilities, 
and  subjects  them  to  the  control  and  direction  of  the  city  au- 
thorities as  fully  as  language  could  declare  that  control  and 
direction.  In  this  latter  particular  it  is  merely  cumulative  in 
its  effect  (Davies'  Laws,  §§  74,  76,  485).  In  1817,  a  statute  was 
enacted,  which  declared  all  persons  who  now  are  or  hereafter 
may  be  appointed  firemen  to  be  members  of  the  Fire  Depart- 
ment of  the  City  of  New  York. 

In  1855,  another  statute  was  passed  relating  to  the  Fire 
Department  of  the  city.  That  act  in  no  respect  affects  the 
control  of  the  municipality  over  that  department  or  the  firemen  ; 


428  COURT  OF  COMMON  PLEAS.  , 

O'Meara  v.  The  Mayor,  &c.  of  New  York. 

appointment  of  members,  their  discipline  and  government  as 
companies  and  members.  So  long  as  companies  exist  and  fire- 
men continue  to  be  members,  both  are  subject  to  the  control 
of  the  city  corporation  (Valentine's  Laws,  758). 

In  1861,  the  statute  of  1855  was  amended,  but  in  no  partic- 
ulars affecting  the  question  under  consideration; — that  amend- 
ment, however,  affords  internal  evidence  of  the  understanding 
ofrtn'e  Legislature,  that  the  Fire  Department  is  an  integral  part 
of  the  city  government,  and  that  the  firemen  are  its  servants 
or  instruments  in  the  discharge  of  its  legitimate  functions 
(Valentine's  Laws,  §§  2,  8,  10,  761). 

II.  The  public  duty  of  the  corporation  to  keep  its  streets  in 
a  safe  condition  for  travel,  embraces  its  sidewalks  and  renders 
its  liability,  in  this  case,  unquestionable.  The  engine,  in  mo- 
tion on  the  sidewalk,  was  an  obstruction  to  its  legitimate  use 
by  the  citizens,  and  endangered  public  travel  (Storrs  v.  City 
of  Utica^Vl  N.  Y.,  104 ;  Davenport  v.  Ituclcman,  16  Abbott's 
Pr.,  341). 

BY  THE  COTTKT. — BRADY,  J. — The  j)laintiff,  on  the  21st  of 
January,  1863,  was  injured  while  standing  on  the  sidewalk  in 
Park  Row,  by  Engine  No.  42,  belonging  to  the  Fire  Depart- 
ment of  the  city  of  New  York.  The  engine  was  drawn  over 
his  legs  and  shoulder,  and  he  was  wounded  in  various  parts  of 
his  body  in  consequence.  The  jury  awarded  him  seven  hundred 
and  fifty  dollars,  and  the  defendants  appeal  from  the  judgment 
entered  thereon.  The  plaintiff  claims  to  maintain  the  judgment 
upon  the  ground  that  the  firemen  in  charge  of  the  engine  were 
the  employees  or  servants  of  the  defendants,  and  for  whose  neg- 
ligence the  latter  are  responsible. 

The  first  act  of  the  legislature  in  reference  to' the  Fire  Depart- 
ment w£s  passed  March  17,  1798,  and  by  that  act  it  was 
declared  that  all  such  persons  as  then  were  or  thereafter  should 
be  engineers  of  the  Fire  Department,  or  firemen  belonging  to 
any  fire  engine  of  the  city  of  New  York,  should  be  a  body  politic 
until  the  first  Tuesday  of  April,  1818.  The  existence  of  the 
corporation  has  been  continued  by  acts  of  the  legislature  until 
the  1st  of  May,  1880  (Acts  of  April  12,  1816;  April  16,  1881; 
April  14,  1858). 

The  act  of  1798  was  passed  upon  the  petition  of  the  firemen, 


NEW  YORK— FEBRUARY,  1865.  429 

O'Meara  v.  The  Mayor,  &c.  of  New  York. 

praying  to  be  incorporated  ;  the  more  effectually  to  provide  ad- 
equate funds  for  the  relief  of  disabled  and  indigent  firemen,  and 
for  the  purpose  of  extinguishing  fires.  By  the  act  of  the  legis- 
lature, passed  in  1813  (Davies'  Laws,  485),  the  Mayor,  Alder- 
men and  Commonalty  are  required  from  time  £o  time,  and  as 
often  as  it  should  be  necessary,  to  appoint  a  sufficient  number  of 
strong,  able,  discreet,  honest,  and  sober  men  willing  to  accept 
such  appointment,  being  freeholders  or  freemen  of  the  city,  to 
have  the  care,  management,  working,  and  using  of  the  fire  en- 
gines, with  power  also  to  remove  all  firemen  appointed  or  to  be 
appointed,  and  declaring  that  the  firemen  were  required  to  be 
ready  at  all  times,  to  manage,  work,  and  use  the  same.  The 
legislature  had  previously,  in  1806,  conferred  upon  the  Com- 
mon Council  the  power  to  pass,  and  provide  for  the  due  ex- 
ecution of,  such  ordinances  as  they  might  deem  proper,  for  the 
more  effectual  prevention  and  extinguishment  of  fires,  and 
to  compel  the  attendance  of  engineers  and  firemen  to  assist  at 
the  extinguishment  (Davies'  Law,  427,  §  15). 

The  primary  object  of  the  incorporation  of  the  Department 
was  to  provide  for  the  relief  of  disabled  and  indigent  firemen, 
in  accordance  with  the  pray*er  of  the  petition  before  referred  to. 
It  was  entirely  for  their  own  benefit,  and  it  had,  so  far  as  that 
object  and  design  of  its  corporation  was  concerned,  a  separate 
and  independent  existence,  being  gifted  with  the  general  powers 
of  a  corporation,  and  authorized  to  hold  and  convey  real  and 
personal  estate,  not  to  exceed  at  any  time  twenty  thousand  dol- 
.lars,  a  sum  which  was  increased  to  fifty  thousand  dollars,  by  the 
act  of  the  legislature,  passed  April  14th,  1831,  and  to  one  hun- 
dred thousand  dollars  by  the  act  of  1851,  passed  April  21.  But 
the  duties  of  firemen  remained  unchanged,  and  their  relation  to' 
the  government  of  the  city  continued,  and  still  continues.  Its  mem- 
bers owe  their  allegiance  to  the  city,  not  as  members  of  a  corpora- 
tion, but  as  members  of  an  organization  identified  with  the  adminis- 
tration of  the  city  government,  and  forming  a  part  of  its  protective 
police,  the  object  of  which  is  to  save  the  property  of  the  citizen 
from  destruction  by  fire,  and  the  services  of  which,  in  that  respect, 
are,  as  we  have  seen,  under  the  control  of  the  Common  Council. 
As  a  body  politic,  it  is  neither  required  by  the  act  of  its  incor- 
poration, nor  was  it  contemplated  by  the  incorporators,  that  it 
should  furnish  the  means  by  which  firea  were  to  be  extinguished. 


430  CO  QRT  OF  COMMON  PLEAS. 

O'Meara  v.  The  Mayor,  &c.  of  New  York. 

On  the  contrary,  the  defendants  were  to  supply  the  necessary 
apparatus  to  accomplish  that  result.  Its  existence,  whether  in- 
corporated or  not,  was,  and  is,  essential  to  the  public  welfare, — 
to  the  protection  of  life  and  property, — and  the  defendants,  as 
an  act  of  sovereignty,  furnish  it  with  such  apparatus,  and  grant 
it  such  facilities  as  are  most  conducive  to  the  effectual  perform- 
ance of  the  duties  of  its  members,  which,  as  we  have  seen, 
are  established  by  law.  The  defendants  are  required,  also, 
to  appoint  the  members  or  firemen,  and  thus,  both  in  refer- 
ence to  filling  its  ranks,  and  endowing  it  with  means  to  be 
of  use,  they  act  in  their  legislative  capacity.  Aside  from  that, 
the  duties  to  be  performed  by  the  firemen  are  not  for  the  bene- 
fit of  the  defendants  particularly.  They  are  for  the  pecuniary 
benefit  of  the  inhabitants  of  the  city,  as  well  as  for  their  personal 
safety.  They  result  in  no  benefit  or  advantage  to  the  defend- 
ants, other  than  to  individuals,  and  then,  only,  when  a  loss  or 
disaster  is  averted  by  their  efforts.  The  powers  exercised, 
therefore,  by  the  defendants,  in  reference  to  the  Fire  I)epjarfc- 
ment,  are  conferred  and  employed  exclusively  for  the  public 
benefit,  not  for  purposes  of  private  advantage  or  emolument,  and 
this  is  an  answer  to  the  plaintiffs'  claim  (The  Mayor  &c.  v. 
Bailey,  2  Denio,  433 ;  Lloyd  v.  The  Mayor,  c&c.,  5  N.  Y.,  369 ; 
Griffin  v.  The  Mayor,  <&c.,  9  N.  Y.,  456). 

The  defendants  have  not  only  legislated  in  regard  to  the  fire- 
men and  their  apparatus,  but  they  have  also,  by  ordinances 
passed  at  various  periods,  extending  over  a  series  of  years,  pro- 
hibited the  running  of  a  fire  engine  or  a  hose  cart  on  any  side- 
walk; except  by  special  order  of  the  engineers,  under  penalty  of 
twenty-five  dollars  for  each  offence,  and  the  expulsion  of  the 
foreman,  assistant  foreman,  and  all  the  members  of  the  company 
(See  Laws  Relative  to  the  Fire  Department,  compiled  pursuant 
to  a  resolution  of  the  Common  Council,  151,  155,  171,  295). 

The  mere  fact  that  the  firemen  had  an  engine  in  their  posses- 
sion by  authority  of  the  defendants,  did  not  create  the  relation 
of  master  and  servant  under  the  circumstances  surrounding  the 
fact,  and  to  which  allusion  has  been  made,  any  more  than 
granting  a  license  to  a  hackman,  and  thus  authorizing  him  to 
drive  his  carriage  over  the  streets  of  New  York,  would  make  him 
the  defendants'  servant,  and  them  liable  for  his  negligent  exer- 
cise of  the  privilege  conferred.  "  It  is  the  duty  of  the  govern- 


NEW  YORK— FEBRUARY,  1865.  431 


Kunz  v.  Stuart. 


ment,"  said  SANDFORD,  J.,  "  to  protect  and  preserve  the  rights  of 
the  citizens  of  the  State,  both  in  person  and  in  property,  and  it 
should  provide  and  enforce  wholesome  laws  for  that  object.  But 
injuries  to  both  person  and  property  will  occur,  which  no  legis- 
lation can  prevent,  and  whicli  no  system  of  laws  can  adequately 
redress.  The  government  does  not  guaranty  its  citizens  against 
all  the  casualties  incident  to  humanity  or  civil  society  (Levy  v. 
City  of  New  York,  1  Sandf.,  467 ;  approved  in  Griffin  v.  The 
Mayor,  &c.,  supra). 

"The  relation  existing  between  the  defendants  and  the  firemen 
being  of  a  legislative  character,  the  one  imposing  by  authority, 
and  the  other  assuming,  certain  duties,  the  defendants  have 
not  incurred  liability  to  the  plaintiff.  The  casualty  which  made 
him  a  sufferer  was  one  incident  to  his  status  as  a  member  of  the 
community,  for  which  his  redress  is  not  against  the  defendants, 
but  against  the  firemen,  who,  at  the  time  he  was  injured,  were 
engaged  in  violating  the  law  which  the  defendants  declared 
they  should  obey.  It  has  not  been  deemed  necessary,  for  the 
purposes  of  this  appeal,  to  review  the  origin  of  the  Fire  Depart- 
ment, or  the  various  statutes  which  have  been  adopted  relating 
to  them.  Sufficient  reference  has  been  made  to  show  that  the 
relation  sought  to  be  established  between  the  firemen  and  the 
defendants,  does  not  exist,  and  that  the  judgment,  therefore, 
must  be  reversed. 

Judgment  reversed. 


GOTTLIEB  KUNZ  v.  ROBERT  L.  STUART  and  ALEXANDER 
STUART. 

In  an  action  by  a  servant  against  his  master  to  reaover  damages  for  an  injury 
occasioned  in  the  course  of  his  employment,  by  defective  or  unsuitable  ma- 
chinery, it  must  appear  that  the  machinery  was  in  fact  defective,  that  the 
injury  was  occasioned  by  such  defect,  and  that  the  defendant  had  notice 
of  it. 


432  COURT  OF  COMMON  PLEAS. 

Kunz  v.  Stuart. 

Where,  in  such  an  action,  the  plaintiffs  own  testimony  is  sufficient  to  justify 
a  presumption  that  the  accident  was  the  result  of  the  negligence  of  a  fellow 
workman  of  the  plaintiff,  a  judgment  of  dismissal  will  not  be  reversed  on 
appeal. 

APPEAL  by  the  plaintiff  from  a  judgment  entered  on  a  dis- 
missal of  the  complaint  at  the  trial. 

The  facts  are  fully  stated  in  the  opinion  of  Judge  HILTON,  de- 
livered on  the  trial,  on  granting  the  motion  to  dismiss  the  com- 
plaint, at  the  close  of  the  plaintifl's  case. 

HILTON,  J. — The  facts  in  this1  case  are,  that  the  defendants, 
who  are  engaged  in  the  sugar  refining  business  in  the  city  of 
New  York,  employed  the  plaintiff  to  assist  in  their  "  Fill 
House  ;"  that  was,  to  fill  the  moulds,  and  place  them  upon  the 
wagon,  or  assist  others  to  do  so,  and  to  move  the  wagons  from 
the  open  space  caused  by  the  hatchway ;  and  when  the  wagon 
was  filled  and  prepared  for  hoisting,  to  hook  it  to  the  end  of  a 
long  chain,  supported  in  equilibrium  by  a  large  block. 
The  hatchway  was  eight  feet  wide,  and  the  wagon  about 
four  or  five.  One  day  while  he  was  engaged  shovelling 
up  the  smear  or  sugar  which  had  fallen  off  the  wagon, 
and  was  about  four  feet  from  the  hatchway,  a  fellow  workman 
in  one  of  the  upper  stories,  which  one  does  not  appear,  called 
out,  "  get  out,"  or  "  look  out  below  there."  The  plaintiff  imme- 
diately jumped  behind  some  barrels  that  were  upon  the  stone 
floor.  The  wagon  passed  by  him,  breaking  one  of  his  legs,  and 
otherwise  seriously  injuring  him.  It  appears  that  this  course  of 
hauling  by  a  tackle  has  been  used  by  the  defendants  for  many 
years,  and  indeed  it  seems  no  other  kind  had  been  used  by 
them.  It  appears,  also,  that  others  engaged  in  the  same 
business,  some  fourteen  or  twenty  sugar  refiners,  used  what 
is  called  the  platform,  for  the  purpose  of  hoisting  and 
lowering  goods  in  sugar  refineries.  There  is  no  proof  whatever 
as  to  which  means  of  raising  or  lowering  goods  of  this  kind  is. 
the  safest. 

No  expert  has  been  produced  to  prove  that  the  platform  is 
the  safer;  that  is,  that  the  platform  is  safer  than  the  tackle. 
We  all  know  that  this  mode  of  hoisting  by  a  hook  to  the  end  of 
a  long  chain  has  been  in  use  from  time  immemorial,  and  that 


NEW  YOEK— FEBRUARY,  1865.  433 


Kunz  v.  Stuart. 


this  mode  of  raising  by  platform  has  come  into  use  only  within 
the  last  few  years.  It  appears  that  those  who  have  used  the 
platforms  have  had  accidents.  In  one  case  a  man  was  killed, 
and  in  another  the  brother  of  one  of  the  witnesses  was  seriously 
wounded.  Now,  these  facts  involve  two  considerations,  in  my 
judgment ;  the  first  is,  whether  the  defendants  can  be  held  lia- 
ble, unless  it  be  shown  by  proof  that  the  machinery  or  tackle 
which  they  used  was  not  only  defective,  but  was  insufficient  for 
the  use  to  which  they  applied  it.  The  first  consideration  that 
the  case  presents  at  this  stage  is,  whether  the  proof  justifies  the 
presumption  that  this  machinery  has  been  shown  to  be  defec- 
tive or  insufficient. 

Then,  again,  the  facts  present  another  view  to  the  Court,  and 
that  is,  whether  the  proof  shows  that  this  accident  was  occa- 
sioned by  the  concurrent  negligence  of  another  workman  en- 
gaged in  the  same  general  employment.  These  are  the  only 
two  views  I  propose  to  consider  as  the  case  now  stands.  And 
first,  the  machinery  used  by  the  defendants  was  so  simple  that 
the  meanest  comprehension  could  work  it,  and  it  did  not  re- 
quire any  skill  at  all.  Nor  does  it  require  any  skill,  in  my 
judgment,  to  attach  this  chain.  It  was  the  old-fashioned  way 
of  hooking  a  tackle,  or  attaching  a  hook  to  goods  to  raise  them 
up  from  the  ground.  The  witness  (the  plaintiff)  says,  that  his 
business  was  to  hook  this  wagon  to  the  end  of  the  chain,  and 
to  unhook  it,  and  that  he  did  so.  He  knew,  therefore, 
the  character  of  the  employment,  and  he  cannot  complain 
that  he  was  attending  upon  a  machine  that  he  did  not 
understand.  He  was  doing  an  act  that  the  meanest  compre- 
hension could  fully  understand.  I  therefore  think,  that  if  the 
injury  is  shown  to  have  resulted  from  the  falling  of  this  wagon 
off  the  hook,  that  it  was  an  accident  that  he  should  have  ta- 
ken into  consideration  as  one  likely  to  happen  when  he  en- 
tered upon  the  service  of  attaching  this  wagon  to  the  hook. 
And  if,  by  any  accident,  that  wagon  was  incompletely  at- 
tached by  his  fellow-workman  above,  that  was  a  consideration 
he  should  have  guarded  against,  or  have  refused  the  employ- 
ment altogether.  Now,  it  has  been  said  Jhat  the  fact  of  a 
spring  having  been  placed  on  this  hook  after  the  accident  oc- 
curred, is  proof  positive  that  this  hook  was  defective  at  the 
time  of  the  accident.  I  don't  so  understand  the  effect  of  that 
28  » 


431  COURT  OF  COMMON  PLEAS. 

Kunz  v.  Stuart. 

testimony  ;  it  merely  shows  that  they  were  trying  a  new  experi- 
ment, in  opposition  to  the  common  course  of  practice  of  years, 
in  order  to  guard  against  all  danger.  At  least  it  appears  that 
no  accident  has  happened  before  this,  and  it  may  be  that  a  sim- 
ilar case  may  arise  from  the  fact  of  using  that  spring  on  the 
hook.  Nor  can  it  be  said  that  the  fact  of  using  a  platform 
would  have  prevented  this  injury,  because  it-  does  not  seem  to 
have  resulted  from  falling  off  the  hook.  There  is  no  proof  in 
the  case,  whatever,  to  show  that  this  thing  fell  from  the  hook — 
and  it  might  just  as  well  have  rolled  off  the  end  of  the  hatch- 
way under  tfce  platform,  in  case  a  platform  was  used.  Therefore 
I  do  not  think  that  the  facts  in  the  case  justify  me  in  supposing 
that  if  the  platform  had  been  used,  no  injury  would  have 
occurred.  The  fact  is,  that  some  use  platforms  and  some  use 
hooks  ;  and  there  may  be  not  only  a  difference  of  opinion  as  to 
which  is  the  safer,  but  also  as  to  which  is  the  more  convenient. 
No  doubt  the  platform  carries  a  larger  quantity  of  goods — but 
whether  it  is  more  safe  and  more  prudent  to  use  a  platform  than 
the  ordinary  hook  and  tackle,  is  yet  to  be  determined.  At  all 
events,  there  is  no  evidence  before  me  to  justify  me  in  presum- 
ing that  the  platform  is  the  safer  mode. ' 

I  now  come  to  the  only  other  question  in  the  case,  and  one 
which  must  determine  it.  That  is,  whether  this  accident  and  the 
injury  to  the  plaintiff  resulted  from  the  negligence  of  a  fellow- 
workman,  or  if  there  is  anything  in  the  case  to  produce  a  doubt 
as  to  whether  this  was  the  result  of  the  negligence  of  a  workman 
in  the  story  above,  in  precipitating  this  wagon  down  on  the  work- 
man below ;  because  there  is  no  question,  if  this  was  the  result  of 
the  negligence  of  the  workman  above,  that  the  defendants  cannot 
be  held  liable.  Now  the  proof  does  not  show  affirmatively  that  this 
wagon  was  ever  attached  to  the  hook,  or  there  is  not  the  slightest 
suspicion  that  this  wagon  fell  from  the  hook.  We  simply  have  proof 
of  the  calling  out  or  exclamation  from  above,  and  the  proof  that 
the  workman  saw  the  wagon  coming  down,  unattached  to  any 
hook  whatever.  Now  it  has  been  said  by  counsel,  you  cannot 
put  a  case  to  a  jury  upon  balanced  evidence.  You  must  show 
affirmatively  that  the  defendant  is  liable  before  the  case  can  go 
to  the  jury.  In  this  case,  it  appears  that  the  workmen,  at  the 
time  this  accfdent  occurred,  were  engaged  in  the  hoisting  and 
lowering  of  the^wagon.  That  was  the  business  of  the  day — one 


NEW  YOKE— FEBKUAKY,  1865.  435 


Kunz  v.  Stuart . 


attending  below,  the  other  above  ;  one  to  receive,  the  other  to 
send  «p  or  send  down ;  and  whilst  thus  engaged,  this  wagon  fell 
through  the  hatchway.  Now  it  seems  to  me,  in  the  absence 
of  any  proof,  the  presumption  must  be  that  this  fell  without  be- 
ing attached  ;  and  if  it  were  the  fault  of  the  workmen,  defend- 
ants cannot  be  held  liable. 

I  therefore  think  the  complaint  must  be  dismissed. 

From  the  judgment  entered  on  the  ruling  of  the  Judge,  and 
an  order  dismissing  a  motion  for  a  new  trial,  the  plaintiff  ap- 
pealed to  the  General  Term. 

F.  S.  Stallnecht  and  T.  C.  T.  Buckley,  for  appellant. 

I.  The  complaint  was  improperly  dismissed.  (1)  The  master 
is  always  responsible  for  injuries  resulting  to  his  employees  from 
his  personal  negligence  or  misfeasance.  The  use  of  improper 
implements  or  insecure  tackle,  or  the  retaining  of  incompetent 
servants,  are  acts  of  negligence  and  misfeasance  (Keegan  v. 
Western  R.  JR.,  8  N.  Y.,  175  ;  Roberts  v.  Smith,  2  Hurls.  & 
Norm.,  213 ;  Patterson  v.  Wallace,  1  McQueen's  Appeal  Cases, 
748 ;  Brydon  v.  Stewart,  2  Id.  30  ;  Noyes  v.  Smith,  29  Vermont 
Kep.  59—64 ;  Ryan  v.  Fowler,  24  N.  Y.,  412 ;  Clarke  v. 
Holmes,  7  Hurl  &  Norm.,  793).  (2)  Whether  the  tackle  in  use 
for  hoisting  and  lowering,  at  the  time  the  plaintiff  was  injured, 
was  such  as  defendants  should  have  used,  must  of  necessity  be  a 
question  of  fact  to  be  determined  by  a  jury,  and  not  a  matter  of 
law,  to  be  determined  by  the  Court  (Ryan  v.  Fowler,  24  N.  Y. 
Eep.,  413).  (3)  Aprimafacie  case  of  negligence  was  estab- 
lished against  defendants. 

Edgar  Logan,  for  respondents. 

I.  The  appellant  himself,  as  a  part  of  his  employment,  hooked 
and  unhooked  these  wagons.  If  there  was  danger,  lie  was  aware 
of  the  same,  and  contracted  for  a  compensation  adequate  to  the 
risk  he  ran  (Story  on  Agency,  §  453e ;  Wright  v.  N.  T.  Cen- 
tral R.  R.,  25  N.  Y.,  562 ;  Sherman  v.  Rochester  and  Syracuse 
R.  R.,  17  N.  Y.,  153  ;  Farwell  v.  The  Boston  &  Worcester  R. 
R.  Co.,  4  Metcalf,  49).  A  servant,  to  recover  of  his  principal 
for  an  injury,  happening  in  the  course  of  his  service,  through  de- 
fects in  the  machinery  used  in  the  discharge  of  his  duties,  must 
prove  actual  notice  to  the  principal  of  the  defocts ;  and  in  order 


436  COURT  OF  COMMON  PLEAS. 

Kunz  v.  Stuart. 

to  be  able  to  prove  notice,  he  must  allege  it  in  his  complaint. 
(McMillan  v.  The  Saratoga  and  W.  R.  R.  Co.,  20  Barb.,  449 ; 
Langlois  v.  Buffalo  and  RodCr  R.  R.,  19  Barb.,  364 ;  Hayden 
v.  Smithmlle  Mfg.  Co.,  29  Conn.,  548). 

II.  The  appellant,  to  entitle  him  to  have  the  case  submitted 
to  the  jury,  was  bound  to  show  why  the  wagon  fell.  A 
mere  allegation  that  it  fell  through  carelessness  and  negligence 
of  the  respondents,  was  not  sufficient.  It  should  have  been  sup- 
ported by  proof.  (Terry  v.  The  N.  T.  Cen.  R.  R.  Co.,  22 
Barb.,  574). 

BY  THE  COTJBT. — CAKDOZO,  J. — This  is  a  case  of  great  hard- 
ship, but  after  careful  reflection,  I  am  constrained  to  say  that 
no  rule  of  law  was  violated  on  the  trial,  and  that  the  action, 
on  the  evidence  adduced,  cannot  be  maintained. 

The  principles  governing  actions  of  this  class  have  quite  re- 
cently undergone  examination  in  the  case  of  Wright  v.  New 
York  and  Central  Railroad  Company  (25  1ST.  Y.,  562),  and  are 
not  only  very  well  settled  now,  but  were  scarcely  the  subject  of 
dispute  between  the  counsel  on  the  argument  before  us. 

To  render  the  master  liable  for  an  accident  occasioned  by  the 
use  of  defective  machinery,  knowledge  of  the  defect  must  be 
brought  home  to  him.  There  is  no  proof  in  this  case  either  that 
the  machinery  was  in  fact  defective-— or,  if  it  were,  that  the 
defendants  had  notice  of  it,  or  that  the  accident  occurred  by 
reason  of  the  defect. 

The  proof  shows  that  the  use  of  platforms  is  not  so  general  as 
to  justify  &  presumption,  (and  there  is  no  evidence  that  such  is 
the  fact),  that  that  method  is  better  or  less  dangerous  than  the 
one  used  by  the  defendants.  The  testimony  is  quite  consistent, 
to  say  the  least,  with  the  idea  that  this  accident  was  the  result 
of  negligence  on  the  part  of  a  fellow-workman  of  the  plaintiff. 

I  do  not  see  that  the  case  of  Clark  v.  Holmes  (7  Hurl.  & 
Norm.,  793),  in  any  way  aids  the  plaintiff. 

In  that  case  the  defendant  was  held  liable,  and  very  justly — 
for  there  was  not  only  shown  notice  to  him  of  the  defect  by 
which  the  damage  was  occasioned,  but  there  was  proof  of  an 
agreement,  before  the  accident,  that  the  defect  should  be  reme- 
died. 

The  judgment  should  be  affirmed. 


NEW  YORK— FEBRUARY,  1865.  437 


Williams  v.  The  Tradesmen's  Fire  Insurance  Company. 


ALBKBT  C.  WILLIAMS  v.  THE  TRADESMEN'S  FIRE  INSURANCE 

COMPANY.* 

It  is  the  duty  of  a  j  udge  of  the  Marine  Court  presiding  at  a  trial  by  a  jury  to  give 
judgment  upon  the  verdict ;  and  this  judgment  he  cannot  intermit  or  avoid 
by  making  an  order  for  a  new  trial. 

An  appeal  from  such  a  judgment,  when  entered,  brings  up  only  questions  of 
law,  and  the  appellant  cannot  be  heard  upon  the  objection  that  the  verdict 
was  contrary  to  evidence. 

There  is  no  provision  of  law  allowing  a  single  judge  of  the  Marine  Court  to 
hear  a  motion  for  a  new  trial,  or  providing  for  an  appeal  in  that  Court  from 
an  order  either  granting  or  denying  such  a  motion. 

The  reversal  of  a  judgment  upon  the  ground  that  it  is  against  the  weight  of 
evidence,  and  an  order  for  a  new  trial  by  the  General  Term  of  the  Marine 
Court,  constitute  a  final  determination,  from  which  an  appeal  may  be  taken 
to  the  Common  Pleas. 

APPEAL  by  the  defendants  from  a  judgment  of  the  Marine 
Court  at  General  Term. 

The  action  was  brought  to  recover  $500  as  a  loss  covered  by 
a  policy  of  insurance  issued  by  the  defendants. 

The  jury  rendered  a  verdict  of  $200  for  the  plaintiff.  The 
plaintiff  appealed  from  the  judgment  entered  upon  the  verdict 
to  the  General  Term  of  the  Marine  Court,  and  the  Court  re- 
versed the  judgment  and  ordered  a  new  trial. 

From  this  judgment  of  the  General  Term,  the  defendant's 
appealed  to  the  Court  of  Common  Pleas,  stating  as  grounds  of 
the  appeal  that  the  Marine  Court  at  General  Term  had  no 
power  to  reverse  a  judgment  as  against  the  weight  of  evidence, 
or  grant  a  new  trial  except  for  error  of  law,  or  to  open  a  de- 
fault. 

• 

Bradley,  Mills   &  WoodhuU,  for   appellants. 
2f.  P.  O'Brien,  for  respondent. 

BY  THE  COURT.  —DALY,  F.  J. — This  was  a  review  by  the  Gen- 
eral Term  of  the  Marine  Court  of  the  finding  of  a  jury  upon 

*  See  a  former  appeal  in  the  same  case,  ante,  p.  323. 


438  -COURT  OF  COMMON  PLEAS. 

Williams  v.  The  Tradesmen's  Fire  Insurance  Company.  • 

conflicting  evidence  without  any  error  of  law  having  occurred  at 
the  trial.  It  was  hearing  a  motion  to  set  aside  a  verdict  after 
judgment  as  against  the  weight  of  evidence,  and  ordering 
a  new  trial,  and  the  question  presented  is  whether  the  General 
Term  of  the  Marine  Court  can  entertain  such  a  motion. 

By  the  act  of  1853  an  appeal  may  be  taken  from  a  judgment 
entered  by  direction  of  a  single  justice  of  the  Marine  Court, 
to  the  justices  of  the  Court  at  a  General  Term,  in  the  same 
manner  and  with  the  like  effect  as  appeals  in  the  Supreme 
Court  from  the  decision  of  a  single  judge  to  the  General 
Term  (Laws  of  1853,  p.  1165,  §  5). 

In  the  Supreme  Court  an  appeal  upon  the  law  may  be  taken 
from  a  judgment  entered  upon  the  direction  of  a  single  judge, 
and  upon  the  fact,  when  the  trial  is  by  the  Court ;  and  upon  the 
trial  of  a  question  of  fact  by  the  Court,  the  decision  of  the 
Court  has  to  be  given  in  writing,  which  must  contain  a  state- 
ment of  the  facts  found,  and  the  conclusions  of  law  separately 
(§§  267,  348).  Where  the  trial  is  by  a  jury,  the  clerk  must 
enter  judgment  in  conformity  with  the  verdict,  unless  a  differ- 
ent direction  is  given  by  the  Court,  which  may.  be  done  only 
in  two  cases,  namely  :  where  the  judge  orders  exceptions  to  be 
heard  in  the  first  instance  at  the  General  Term,  or  where  he 
directs  a  verdict  subject  to  the  opinion  of  the  Court  (Cdbb  v. 
Cornish,  16  K  Y.  R.,  602). 

Where  judgment  is  entered  upon  the  verdict  of  a  jury, 
and  a  new  trial  is  sought,  the  motion  for  a  new  .trial  must  be 
made  in  the  first  instance  before  a  judge  at  the  Special  Term, 
and  such  a  motion  is  a  proceeding  entirely  distinct  and  differ- 
ent from  an  appeal  from  the  judgment,  for  both  may  be  pur- 
sued at  the  same  time  (Benedict  v.  Gaffe,  3  Duer,  669 ;  Hast- 
ings v.  McKinley,  3  Code  R.,  10). 

A  motion  for  a  new  trial  originated  as  a  motion  in  arrest  of 
judgment,  and  could  be  heard  only,  at  bar,  before  the  full 
Court  in  term  (Slade^s  Case,  Styles  R.,  138  ;  Wood  v.  Gunston, 
Id.,  466) ;  and  such  was  the  law  in  this  State  down  to  the  year 
1832,  when  an  act  was  passed  (Laws  of  1832,  p.  186),  by  which 
motions  for  a  new  trial  in  the  Supreme  Court  had  to  be  made 
to  the  circuit  judge  to  the  exclusion  of  the  right  of  the 
Supreme  Court  to  hear  them  iii  the  first  instance  (Graham's 


NEW  YORK— FEBRUARY,  1865.  439 

Williams  v.  The  Tradesmen's  Fire  Insurance  Company. 

Practice.  637,  2  ed.),  and  this  feature  has  been  substantially  re- 
tained under  the  Code. 

From  the  order  of  a  judge  at  Special  Term  refusing  or  grant- 
ing a  motion  for  a  new  trial,  an  appeal  lies  to  the  General  Term, 
and  unless  brought  before  them  in  this  way  by  appeal,  the 
General  Term  of  the  Supreme  Court  cannot  hear  such  a  motion 
(De  La,  Figaniere  v.  Jackton,  4  E.  D.  Smith,  482 ;  Maloney  v. 
Dows,  18  How.,  27  ;  Hastings  v.  MoKinsley,  3  Code  R.,  10  ; 
Morgan  v.  Bruce,  1  Code  R.  N.  S.,  364). 
^  There  is  no  provision  of  law  allowing  a  single  judge  of  the 
Marine  Court  to  hear  a  motion  for  a  new  trial,  and  therefore  no 
mode  in  which  such  a  motion  can  come  before  the  General 
Term  of  the  Marine  Court,  in  the  same  manner,  and  with  the 
like  effect,  as  in  the  Supreme  Court.  Where  a  cause  is  tried 
before  a  single  judge  without  a  jury  in  the  Supreme  Court,  the 
facts,  upon  an  appeal  from  the  judgment  entered  by  his  direc- 
tion, may  be  reviewed  by  the  General  Term,  and  possibly  in  a 
similar  case  in  the  Marine  Court  the  same  right  to  review  may 
exist,  though  the  point  is  one  upon  which  I  express  no  opinion. 

But  where  there  is  a  trial  by  a  jury  in  the  Marine  Court,  it 
is  the  duty  of  the  judge  presiding  at  the  trial  to  give  judgment 
upon  the  verdict  (Laws  of  181 3, Vol.  2,  p.  374,  §  95  ;  p.  389, 
§  131 ;  S'tbley  v.  Howard,  3  Denio,  72),  and  this  duty  he  could 
not  intermit  or  avoid  by  making  an  order  for  a  new  trial,  and 
when  the  judgment  is  entered  up,  the  appeal  upon  it,  as  in  the 
Supreme  Court,  brings  up  only  questions  of  law,  and  the 
appellant  could  not  be  heard  upon  the  objection  that  the  ver- 
dict was  contrary  to  evidence  (Anthony  v.  Smith,  4  Bosw.  R., 
503 ;  Ogden  v.  Coddington,  2  E.  D.  Smith,  325 ;  De  La  Fig- 
aniere v.  Jackson,  4  Id.,  482).  "  That,"  said  Chief  Justice 
BOSWOETH,  in  the  case  first  cited,  "  can  only  be  considered  at 
General  Term,  upon  an  appeal  from  an  order  denying  a  motion 
for  a  new  trial."  There  is  nothing  in  the  previous  legislation, 
in  the  Code,  or  in  the  statutes,  relating  to  the  Marine  Court, 
providing  for  an  appeal  in  that  Court,  from  an  order  either 
granting  or  denying  a  new  trial,  or  authorizing  a  judge  of  that 
Court  to  make  such  an  order.  The  appeal  allowed  by  the  act 
of  1853,  is  from  the  judgment,  and  it  is  very  clear  that  the 
General  Term  of  the  Marine  Court  cannot,  upon  such  an  appeal, 
exercise  a  power  which  the  Supreme  Court  does  not  possess. 


440  COUHT  OF  COMMON  PLEAS. 

£ean  v.  Mather. 

The  General  Terra  reversed  the  judgment,  and  it  must  have 
been  upon  the  ground  that  it  was  against  the  weight  of  evi- 
dence, as  there  was  no  question  of  law,  but  simply  a  question 
of  fact  upon  conflicting  evidence,  and  they  made  an  order  for  a 
new  trial.  The  reversal  of  the  judgment  was  an  actual  and  a 
final  determination.  As  there  could  be  no  new  trial,  the  Court 
having  no  authority  to  grant  one,  and  as  the  judgment  was  re- 
versed, and  the  right  of  the  parties  finally  determined,  so  far  as 
respects  the  Marine  Court,  an  appeal  lay  to  this  Court  to  cor- 
rect the  erroneous  judgment  which  had  been  rendered. 

The  judgment  should  be  reversed. 


CURTIS  C.  BEAN  v.  JOHN  C.  MATHEE  and  FBANCIS  N.  BIXBT. 

Where  one  partner,  without  the  knowledge  or  authority  of  his  copartners, 
endorsed  the  name  of  the  firm  upon  a  promissory  note  made  for  his  indi- 
vidual benefit,  and,  being  sued  upon  the  note,  he,  without  the  knowledge 
or  authority  of  the  other  partners,  upon  whom  process  had  not  been  served, 
employed  an  attorney  to  appear  not  only  for  himself  but  for  them,  and 
judgment  was  rendered  against  all, — Held,  notwithstanding  there  was  an 
appearance  by  attorney,  that  the  judgment  would  be  set  aside,  under  such, 
circumstances,  against  the  other  partners,  and  that  they  would  be  allowed 
to  come  in  and  defend. 

The  appearance  of  an  attorney  without  authority  is  a  nullity.    BKADT,  J. 

APPEAL  by  the  plaintiff  from  an  order  made  at  Special  Term 
(HILTON,  J.),  November  19th,  1863,  vacating  a  judgment  as  to 
defendants. 

It  appeared  from  the  affidavits  read  on  the  motion,  that  the 
plaintiff  obtained  in  May,  1861,  on  a  default  and  inquest  at 
the  Trial  Term,  a  judgment  against  the  defendants  Matter, 
Bixby,  Mclntyre,  and  Samuel  Osgood. 

The  defendants  Mclntyre,  Mather,  and  Bixby,  were  copart- 
ners in  1861,  under  the  firm-name  of  Mclntyre,  Bixby  &  Co. 
The  action  was  upon  two  promissory  notes  made  by  Osgood  to 


NEW    YOKK— FEBRUARY,   1865  441 


Bean  v.  Mather. 


Mclntyre  for  his  personal  accommodation,  and  by  him  indorsed 
in  the  firm-name  Mclnt yre,  Bixby  &  Co.  without  the  knowledge 
or  authority  of  his  partners.  The  notes  not  being  paid  at  matur- 
ity, action  was  brought  thereon.  Mclntyre  employed  counsel  to 
defend  the  action  for  all  of  the  defendants.  The  defendants 
Mather  and  Bixby  were  not  served  with  proc.ess,  and  had  no 
knowledge  of  the  pendency  of  the  action,  or  retainer  of  the  at- 
torney who  appeared  for  them. 

From  an  order  vacating  the  judgment  as  to  the  defendants 
Mather  and  Bixby,  with  leave  to  answer,  the  plaintiff  appealed 
to  the  General  Term. 

D.  If.  Porter,  for  the  appellant. 

A.  Spaulding,  for  respondents.  , 

BY  THE  COURT. — BEADY,  J. — The  rule  of  law  that  an  appear- 
ance by  a  responsible  attorney  without  collusion,  is  binding  upon 
the  person  for  whom  he  appears,  and  that  for  any  injury  result- 
ing to  him  therefrom,  such  person  must  pursue  the  attorney,  has 
not  been  enforced  rigorously  in  this  State.  The  defendant  has 
generally  been  permitted  to  come  in  and  defend.  Such  was  the 
order  made  in  Denton  v.  Noyes  (6  Johns.  R,  296) ;  in  which 
the  cases  illustrative  of  the  rule  mentioned  are-  collected  and 
commented  upon ;  also  in  the  cases  of  Grazebrook  v.  McCreedie 
(9  Wend.,  437) ;  and  Sterne  v.  Bentley  (3  How.  Pr.  Eep., 
331) ;  in  which  the  defendants  were  copartners,  and  one  of  them 
had  employed  an  attorney  to  act  for  both,  without  the  knowledge 
of  his  associate  ; — also  in  the  case  of  Blodget  v.  Conklin  (9  How. 
Pr.  Rep.,  442),  in  which  the  defendants  were  joint  debtors,  and 
had  both  been  served  with  process,  but  in  which  one  of  the  de- 
fendants, without  the  authority  of  the  other,  employed  an  attor- 
ney who  appeared  for  both. 

These  cases  are  precedents  for  affording  the  relief  granted  by 
the  judge  at  Special  Term,  and  making  it  apparent  that  the  or- 
der appealed  from  should  be  affirmed.  I  think,  however,  that 
the  rule  itself  is  unjust.  It  has  been,  in  effect,  repudiated  in 
Allen  v.  Stone  (10  Barb.,  547).  It  was  said  by  KENT,  Ch.  J.,  in 
Denton  v.  Noyes  (supra),  in  reference  to  it  that  "  the  cases  may 
not  seem  correct  if  we  were  to  reason  from  first  principles."  It 
is  asailed  in  Williams  v.  Van  Valkenburg  (16  How.  Pr.  Rep., 


442  COURT  OF  COMMON  PLEAS. 

Bean  v.  Mather. 

144),  by  JOHNSON,  J.,  as  unjust  in  principle,  although  he  says, 
"  I  do  not,  however,  propose  at  this  day  to  abrogate  the  rule  as  it 
now  stands."  In  SheUon  v.  Tiffin  (6  How.  U.  S.  Eep.,  183),  the 
rule,  though  recognized,  was  repudiated.  McLEAN,  J.,  said: 
"  But  the  appearance  by  counsel  who  had  no  authority  to  waive 
process,  or  to  defend  the  suit  for  E.  L.  Perry,  may  be  explained. 
An  appearance  by  counsel  under  such  circumstances,  to  the  pre- 
judice of  a  party,  subjects  the  counsel  to  damages,  but  this  would 
not  sufficiently  protect  the  rights  of  the  defendant.  He  is  not 
bound  by  the  proceedings,  and  there  is  no  other  principle  which 
can  afford  him  adequate  protection.  The  judgment  must  be  con- 
sidered a  nullity."  The  antiquity  of  the  doctrine  neither  com- 
mands my  respect  nor  excites  my  veneration.  It  is  in  derogation  of 
the  rule  that  a  man  does  nothing  when  he  acts  neither  in  person 
nor  by  agent  or  attorney  duly  authorized.  It  is  subversive  of  his 
right  of  defence  and  trial  by  jury,  and  strips  from  him  the  pro- 
tection of  the  doctrine  that  his  property  shall  not  be  taken  save 
by  the  judgment  of  his  peers.  It  no  doubt  originated  in  the 
theory  that  the  plaintiff  was  innocent,  not  having  connived  at 
the  appearance  by  the  unauthorized  attorney,  but  that  is  no 
reason  for  imposing  two  burdens  on  the  defendant  who  is  equally 
innocent,  the  burden  of  paying  the  judgment  improperly  ob- 
tained against- him  and  of  prosecuting  the  attorney  who  violated 
his  right.  The  burden  was  cast  upon  the  wrong  person.  The 
plaintiff  should  have  been  compelled  to  sue  the  attorney  if  he 
was  damnified  by  the  improper  appearance.  It  is  not  difficult 
to  see  that  the  greater  loss  must,  under  the  rule  referred  to,  fall 
on  the  defendant  who  has  to  pay  ther  judgment,  and  then  prose- 
cute the  attorney.  But  without  pursuing  this  subject  further, 
and  entertaining  the  opinion  that  the  appearance  of  an  attorney 
without  authority  is  a  nullity,  and  should  be  so  declared,  I  think, 
as  matter  of  precedent  and  of  right  and  justice,  the  order  ap- 
pealed from  should  be  affirmed. 

CARDOZO,  J. — I  concur  in  the  conclusion  that  under  the  cir- 
cumstances of  this  case,  the  order  appealed  from  is  right,  and 
should  be  affirmed. 

DALY,  F.  J. — I  agree  that  the  order  should  be  affirmed 
Order  affirmed,  with  costs. 


NEW   TOEK— FEBRUARY,   1865.  443 

Lahey  v.  Brady. 


HUGH  LAHEY  v.  WILLIAM  S.   BEADY,  impleaded  with  JOHN 

RIGNEY. 

The  cause  of  action  in  a  replevin  suit  survives  the  death  of  the  plaintiff,  though 
not  of  the  defendant,  and  the  action  may  be  continued  in  the  name  of  the 
decedent's  representatives ;  in  which  case  the  sureties  of  the  decedent  on  the 
replevin  bond  continue  liable. 

The  plaintiff  in  a  replevin  suit  died  pending  the  action,  and  the  defendant 
procured  an  order  against  his  administratrix  that  she  continue  the  action, 
and  obtained  a  judgment  in  the  action  against  her  by  default; — Held,  that 
the  action  was  properly  continued,  and  that  the  sureties  of  the  plaintiff 
were  liable  upon  their  bond  for  the  defendant's  damages  in  the  revived  suit. 

APPEAL  from  a  judgment  of  Special  Term  overruling  a  de- 
murrer. 

The  action  was  founded  upon  an  undertaking  in  replevin, 
given  by  the  defendants  as  sureties  of  one  Thomas  P.  Sherlock. 
Sherlock  brought  suit  against  Hugh  Lahey  to  recover  possession 
of  a  horse,  and  on  taking  the  horse,  gave,  with  the  defendants 
to  this  action,  the  usual  undertaking.  Before  the  trial  of  that 
action,  Sherlock  died,  and  his  widow  was  appointed  his  admin- 
istratrix. Lahey  thereupon  moved  that  the  action  be  continued 
in  the  name  of  the  administratrix,  and  upon  her  default,  ob- 
tained an  order  to  that  effect.  The  administratrix  not  appear- 
ing, Lahey  obtained  judgment  against  her,  and  on  a  writ  of 
inquiry,  his  damages  were  assessed  at  two  hundred  and  eighty- 
one  dollars  and  eight  cents.  Lahey  then  commenced  this  action 
upon  the  original  undertaking  against  the  defendants  Rigney  and 
Brady.  Rigney  put  in  an  answer,  and  the  defendant  Brady 
demurred  to  the  complaint,  as  "  not  stating  facts  sufficient  to 
constitute  a  cause  of  action."  The  demurrer  was  overruled  at 
the  Special  Term,  and  judgment  entered  on  the  demurrer  for 
the  plaintiff,  from  which  judgment  the  defendant  Brady  ap- 
pealed. 

C.  A.  Nichols,  for  the  appellant. 
Capron  dk  Lake,  for  the  respondent. 


444  COURT  OF  COMMON  PLEAS. 

Lahey  v.  Brady. 

BY  THE  COUBT. — DALY,  F.  J. — This  was  an  action  against 
sureties  upon  an  undertaking  in  replevin.  While  the  action 
of  replevin  was  pending,  the  plaintiff  died,  and  the  defendant, 
upon  motion,  obtained  an  order  from  the  Court,  that  the  admin- 
istratrix of  the  plaintiff  should  continue  the  action,  which  she 
failed  to  do,  and  the  defendant  obtained  judgment.  The  judg- 
ment was  not  paid,  and  the  action  being  brought  upon  the  un- 
dertaking, the  defendants  demurred  upon  the  ground  that  the 
action  of  replevin  abated  by  the  death  of  the  plaintiff. 

It  was  insisted  that  replevin  was  not  one  of  the  class  of  actions 
which  could  be  continued  by  order  of  the  Court,  in  the  name 
of  the  personal  representatives  of  the  deceased  party,  for  the 
reason  that  the  cause  of  action  did  not  survive,  and  that  there- 
fore all  the  proceedings  had,  by  the  order  of  the  Court,  after 
the  death  of  the  plaintiff  in  the  replevin,  were  without  authority 
and  void. 

At  the  common  law  all  actions  abated  by  the  death  of  either 
party  for  the  want  of  litigants,  and  if  the  cause  of  action  sur- 
vived, the  personal  representatives  of  the  deceased  party  had 
to  bring  another  action.  In  replevin,  if  the  plaintiff  died,  the 
cause  of  action  survived,  but  if  the  defendant  died,  the  right  of 
action  against  him  died  with  him,  so  that  although  the  personal 
representatives  of  a  party  frotn  whom  goods  or  chattels  had 
been  tortiously  taken  in  his  life-time,  might  maintain  replevin, 
no  such  action  could  be  maintained  against  the  personal  repre- 
sentatives of  one  who  in  his  life-time  had  tortiously  possessed 
himself  of  goods,  unless  the  property  came-  into  the  possession 
of  the  personal  representatives,  and  they  refused  to  restore  it. 
In  the  much  debated  case  of  Mason  v.  J)ixon,  (Sir  Wm.  Jones' 
Rep.,  173),  the  common  law  was  declared  by  the  Court  to  be 
as  follows  :  If  the  goods  of  J.  S.  were  taken  tortiously,  and  he 
died,  his  executor  could  not  have  trespass  at  the  common  law, 
even  though  the  goods  were  destroyed,  but  he  could  have  re- 
plevin by  a  writ  in  detinue  for  the  recovery  of  the  thing  itself, 
and  if  J.  S.  took  goods  tortiously,  and  died,  trespass  would  not 
lie  against  J.  S.'s  executor,  even  though  the  goods  were  de- 
stroyed ;  but  if  the  executor  have  the  goods  in  his  possession, 
then  detinue  would  lie  against  him  upon  his  own  possession. 

The  rule  of  the  common  law  was  enlarged  by  the  statute  of 
4,  of  Ed.  III.,  ch.  7,  which  gave  a  remedy  in  damages  to  the  exe- 


NEW  YORK— FEBBUABY,  1865.  445 

Lahey  v.  Brady. 

cutor  for  a  tortious  carrying  away  of  the  goods  of  the  testator  in 
his  lifetime,  and  this  statute  being  always  equitably  construed, 
the  executor  might,  according  to  the  exigencies  of  his  case, 
bring  replevin,  detinue,  trover,  trespass,  or  an  action  for  money 
had  and  received.  It  was  the  design  of  the  statute,  said  the 
Court  in  the  Bishop  of  Coventry  and-Litchfield?s  -Case  (1  An- 
derson B.,  241),  where  the  testator  had  been  tortiously  deprived 
*of  his  chattels,  that  the  executor  should  have  such  action  as  the 
testator  could  have  had ;  and  see  to  the  same  effect,  Countess 
of  Rutland's  Case,  1  Cro.  Eliz.,  378  ;  Berwick  v.  Andrews,  2 
Ld.  Bay.,  973  &  4 ;  Chamberlain  v.  Williamson,-  2  M.  &.S., 
408. 

But  neither  this  statute  nor  the  common  law  gave  any  right 
of  action  against  the  executor  or  adminislrator  of  a  per- 
son who  had  tortiously  taken  goods  in  his  lifetime  (Carter  v. 
Fossett,  Palmers'  B.,  329  ;  Hambly  v.  Trott,  Cowp.,  371). 

Thus  it  was  held  in  Mellen  v.  Baldwin  (4  Mass.  B.,  480),  that 
though  the  action  of  replevin  survives  the  death  of  the  plaintiff, 
it  does  not  survive  the  death  of  the  defendant.  "  In  replevin," 
§aid  Chief  Justice  PAKSONS,  in  delivering  the  opinion  of  the 
Court,  "  the  ground  of  action  for  the  plaintiff,  is  his  property, 
either  general  or  special,  and  a  tortious  violation  of  his  rightof 
property  by  the  defendant.  The  defendant  is  therefore  charged 
with  a  tort  which  cannot  survive  against  his  executor  or  ad- 
ministrator. *  *  But  the  executor  or  admin- 
istrator of  a  plaintiff  in  replevin  may  come  in  and  prosecute, 
because  the  chattels  of  the  deceased  being  vested  in  him  by 
the  law,  he  might  sue  a  replevin  against  the  defendant,  who 
had  unlawfully  taken,  and  still  held  them,  and  this  within  the 
equity  of  the  statute  of  4  Edw.,  III." 

The  present  is  the  case  of  the  death  of  a  plaintiff  in  replevin 
where,  as  has  been  shown  by  these  authorities,  the  cause  of 
action  survives  ;  and  the  Code  declares,  that  where  the  cause 
of  action  survives,  the  action  shall  not  abate-,  and  that  the 
Court  may  order  it  to  be  continued  by  the  representatives  or 
successor,  in  interest  of  the  party  deceased. 

The  two  cases  in  this  State  relied  on  by  the  defendants  upon 
the  argument,  are  not  in  conflict  with  the  view  of  the  law  as 
above  stated.  Wither*  s  Executors  v.  Underbill,  19  Wend., 
447,  was  a  case  of  the  death  of  a  defendant  in  replevin,  and  the 


446  COURT  OF  COMMON  PLEAS. 

Dayton  v.  Rowland. 

Court  necessarily  held  that  the  action  could  not  be  revived  by 
scire  facias.  In  Burkle  v.  Luce,  1  N.  Y.,  163,  Judge  JEWETT, 
in  reference  to  a  previous  action  of  replevin,  said  that  the  action 
abated  by  the  death  of  the  plaintiff,  and  this  was  correct ;  but 
the  question  did  not  arise  as  to  whether  the  cause  of  action 
survived  to  the  executor,  or  as  to  whether  the  action  could  be 
revived  by  scire facias, for  the  defendant  in  the  replevin,  after 
the  death  of  the  plaintiff,  took  the  property  again,  upon  which' 
the  executors,  as  a  wrongful  taking  of  it  from  them,  brought  a 
second  action  of  replevin,  and  were  defeated,  upon  the  ground 
that  the  testator's  claim  to  the  property  was  founded  upon  a 
sale  that  was  fraudulent  and  void. 

The  demurrer  was  therefore  properly  overruled,  and  the 
judgment  of  the  Special  terra  should  be  affirmed. 


CHABLES  DAYTON  and  LEWIS  MONK  v.  HENBT  ROWLAND  and 
EDWABD  M.  BANKS. 

Where,  by  a  custom  of  the  trade,  a  purchaser  of  gpods  on  shipboard  is  bound 
to  unload  within  a  definite  time,  and  by  reason  of  the  purchaser's  failure  to 
take  the  goods  within  that  time,  the  owner  is  obliged  to  pay  lighterage 
and  storage  fees  thereon, — Held,  that  the  purchaser  is  liable  for  such 
payments. 

Where  the  justice  of  a  District  Court  renders  judgment  for  the  plaintiff  on 
conflicting  evidence,  the  appellate  court  will  assume  in  respect  to  every 
point  on  which  the  testimony  was  conflicting,  that  the  justice  found  hi  favor 
of  the  plaintiffs. 

APPEAL  by  defendants  from  a  judgment  of  the  District  Court 
of  the  First  District. 

This  action  was  brought  by  the  plaintiffs  to  recover  from  the 
defendants  moneys  paid  by  them  for  lighterage  and  storage  of 
grain  sold  by  them  to  the  latter.  It  appeared  on  the  trial  that 
the  plaintiffs  shipped  on  board  the  canal-boat  Toronto  sixty- 
nine  thousand  bushels  of  wheat,  which  were,  on  their  arrival  at 
New  York,  sold  by  their  agents,  Gordon,  Bruce  &  McAuliffe,  to 
the  defendants.  It  also  appeared  that  there  was  a  custom  of 
the  trade  that  the  purchaser,  in  such  a  case,  should  have  three 


KEW  YOKK— FEBRUABY,  1865.  447 

Dayton  v.  Rowland. 

fair  days,  including  the  day  of  sale,  to  unload  the  vessel.  The 
sale  was  made  on  the  14th  of  May,  1862,  and  the  two  following 
days  were  fair.  On  the  day  of  the  sale,  the  defendants  sent 
their  sampler,  who  examined  the  grain,  and  reported  it  equal  to 
the  sample.  On  the  same  day,  Gordon's  clerk  was  referred  by  one 
of  the  defendants  to  the  sampler,  a  Mr.  Grout,  for  directions  as 
to  the  disposal  of  the  grain.  The  clerk  went  several  times  to 
Grout  for  directions,  and  finally  was  directed  by  him  to  have  the 
grain  alongside  of  the  ship  Bavaria.  The  clerk,  thereupon,  in 
the  afternoon  of  15th,  filled  up  an  order  to  that  effect,  and  gave 
it  to  Grout.  This  order  was  delivered  on  the  boat  on  the  morn- 
ing of  the  16th,  between  nine  and  ten  o'clock,  and  the  boat  im- 
mediately proceeded  to  the  ship  Bavaria.  Mr.  Dane,  the  agent, 
and  part  owner  of  the  boat,  learned  from  Mr.  Grout  that  the 
ship  was  not  ready  to  receive  cargo,  but  probably  would  be  ready 
by  noon  of  the  next  day.  Mr.  Dane,  thereupon,  gave  notice  to 
the  plaintiffs'  agents,  that  the  boat  must  be  unloaded  that  day, 
or  that  he  would  put  the  wheat  in  store  ;  and,  not  hearing  fur- 
ther from. them,  at  about  three  P.  M.  ordered  the  boat  to  leave 
the  Bavaria,  and  placed  the  wheat  in  store,  in  his  own  name, 
subject  to  his  order,  paying  the  charges.  The  next  day,  the 
17th,  he  gave  plaintiffs'  agent  notice  that  they  could  have  the 
wheat  on  paying  these  charges,  which  they  did. 

The  defendants,  having  demanded  the  grain,  it  was  afterwards 
delivered  to  them,  upon  an  understanding  that  they  would  pay 
the  amount  paid  by  the  plaintiffs'  .agents  for  lighterage  and  stor- 
age, if  bound  in  law  to  do  so. 

The  defendants'  evidence  contradicted  this  in  some  points, 
and  especially  as  to  the  date  of  the  completion  of  the  sale,  which 
they  claimed  was  not  till  the  15th ;  also,  as  to  the  state  of  the 
ship  Bavaria,  on  board  of  which  they  claimed  the  wheat  could  have 
been  received  on  the  17th,  and  they  denied  any  such  under- 
standing as  was  alleged  by  the  plaintiffs,  as  to  their  reservation 
of  the  right  to  recover  the  charges  from  the  defendants. 

The  justice,  on  this  evidence,  rendered  a  general  judgment  for 
the  plaintifls  for  two  hundred  and  forty-eight  dollars  and  thirty- 
one  cents,  from  which  judgment  the  defendants  appealed. 

H.  W.  Johnson,  for  appellants. 
W.  0.  Barrett,  for  respondents. 


448  COUET  OF  COMMON  PLEAS. 

Dayton  v.  Rowland. 

BY  THE  COUKT. — DALY,  F.  J. — We  must  assume,  in  respect  to 
every  point  on  which  the  testimony  is  conflicting,  that  the  justice 
found  in  favor  of  the  plaintiffs,  and  are  consequently  bound  to  con- 
clude that  he  found  that  the  grain  was  sold  to  the  defendants  on 
the  14th ;  that  it  was  to  be  put  on  board  a  vessel  to  be  designated 
by  Grout,  the  measurer ;  that,  according  to  the  custom,  the  pur- 
chaser has  three  days  of  fair  weather,  including  the  day  of  the 
purchase,  to  unload,  and  that,  in  this  case,  the  16th  was  the  last 
day ;  that  the  vessel  was  designated  by  Grout,  but  was  unable  to 
receive  the  grain  within  the  time  limited ;  that  the  plaintiffs' 
right  to  the  use  of  the  canal-boat  expired  on  the  16th,  and  that 
on  the  afternoon  of  that  day  the  owner  of  the  boat,  being  en- 
titled, on  the  next  day,  to  the  use  and  possession  of  it,  unloaded 
the  grain,  and  stored  it  in  a  warehouse,  at  the  charge  and  ex- 
pense of  the  plaintiffs,  which  they  might  lawfully  do  (Rowland 
v.  Miln,  2  Hilt.,  150  ;  Fisk  v.  Newton,  1  Denio,  45),  and  that 
to  enable  the  defendants  to  get  it,  the  plaintiffs'  agent  paid  the 
charges  upon  it,  amounting  to  two  hundred  and  twenty-four  dol- 
lars and  fifty-one  cents,  upon  an  understanding  between  them 
and  the  defendants  that  the  defendants  would  pay  the  amount 
if  they  were  bound  in  law  to  do  so.  Upon  this  state  of  facts,  the 
justice  gave  judgment  for  the  plaintiffs,  and  I  think  he  decided 
correctly. 

The  owners  of  the  canal  boat  were  responsible  to  the  ware- 
houseman for  the  storage,  and  the  plaintiffs,  in  turn,  were  an- 
swerable for  it,  to  the  owners  of  the  canal-boat.  It  was  not, 
therefore,  a  voluntary  payment  on  the  part  of  the  plaintiffs,  but 
was  compulsory,  as  they  were  liable  for  the  storage,  and  as  the 
act  of  storing  the  grain  was  for  the  benefit  of  the  defendants,  as 
purchasers,  and  had  become  necessary,  in  consequence  of  the  de- 
fendants' neglect  to  have  the  boat  unloaded  within  the  time  lim- 
ited, it  was  a  payment  to  the  use  of  the  defendants,  and  such  be- 
ing  the  case,  the  plaintiffs  could  recover  it  from  the  defendants 
(Hunter  v.  Hunt,  1  Com.  Bench  R.,  304;  Hooper  v.  Treffry,  1 
Exchq.  K,  17 ;  May  dew  v.  Forrester,  5  Taunt.,  615 ;  Cowell  v. 
Edwards,  2  Bos.  &  Pul.,  268 ;  Gottsburger  v.  Earned,  2  E.  D. 
Smith,  128 ;  Wells  v.  Porter,  7  Wend.,  119). 

The  declarations  of  Grout  were  inadmissible  to  show  that  tho 
Bavaria  could  not  take  in  the  grain  on  the  16th ;  but  the  fact  waa 


NEW    YORK— FEBKUARY,   1865.  449 

The  Yonkers  and  New  York  Fire  Insurance  Company  v.  Bishop. 

sufficiently  shown  by  the  defendants'  letter,  by  which  they  re- 
quired until  the  end  of  the  next  day,  the  17th,  to  unload  the  ca- 
nal-boat. 

The  judgment  should  be  ajfirmed. 


THE  YONKERS  AND  NEW  YORK  FIRE  INSURANCE  COMPANY  v. 
NATHANIEL  C.  BISHOP. 

Where  the  affidavit  of  the  defendant  in  summary  proceedings  to  dispossess  for 

/  the  non-payment  of  rent  raises  two  questions,  and  the  jury  finds  generally 

for  the  defendant,  both  questions  are  presumptively  res  adjudicate,  and  in  a 

subsequent  proceeding,  in  which  one  of  such  questions  arises,  it  is  for  the 

plaintiff  to  show  that  it  was  not  passed  upon  by  the  jury. 

Where,  in  the  summary  proceedings,  th,e  defendant's  affidavit  denied  his 
indebtedness  on  various  grounds,  including' that  of  eviction  by  title  para- 
mount, and  als«  denied  any  demand  of  the  rent,  and  the  jury  found  a  gen- 
eral verdict  for  the  defendant, — Held,  in  a  subsequent  action  for  the  same 
rent,  that  the  verdict  was  presumptively  res  adj'MJicata  on  both  points, 
and  that  it  was  for  the  plaintiff  to  show  that  the  jury  only  passed  on  the 
question  of  demand. 

APPEAL  by  the  defendant  from  a  judgment  entered  on  a  ref- 
eree's report. 

The  action  was  brought  to  recover  six  months'  rent  from  May 
1st,  to  November,  1st,  1863,  of  a  portion  of  the  basement  of  the' 
building  No.  161  Broadway.  The  first  story  above  the  basement 
was  leased  in  February,  1863,  by  the  owner  in  fee  of  the 
premises  to  the  Columbia  Fire  Insurance  Company.  In 
March,  1863,  the  landlord  leased  the  basement  to  the  plaintiffs 
in  this  action,  who  in  April,  1863,  sub-let  the  rear  portion  of 
the  premises  to  the  defendant.  The  defendant's  premises  were 
29 


450  COURT  OF  COMMON  PLEAS. 

The  Yonkers  and  New  York  Fire  Insurance  Company  v.  Bishop. 

in  part  lighted  by  floor  lights  from  the  story  above.  In  Novem- 
ber, 1863,  summary  proceedings  were  commenced  by  the 
plaintiffs  for  the  eviction  of  the  defendant  for  non-payment  of 
rent.  The  defendant  in  those  proceedings  made  affidavit  that 
he  was  not  justly  indebted  for  rent  .of  the  premises,  setting  up 
specially,  as  an  eviction  by  title  paramount,  'the  darkening  of 
the  floor  lights  by  the  Columbia  Company  to  such  an  extent 
as  to  make  the  premises  untenantable.  His  affidavit  also  de- 
nied rany  demand  of  the  rent.  The  verdict  of  the  jury  was  in 
favor  of  the  defendant,  and  judgment  was  given  in  accordance 
with  it. 

The  plaintiffs  then  brought  this  action.  On  the  trial  before 
the  referee,  the  plaintiff  having  rested,  the  defendant  gave  the 
former  proceedings  in  evidence.  The  summons  and  affidavit, 
with  their  endorsement  as  to  the  verdict,  were  read,  and  the  de- 
fendant offered  parol  testimony  to  show  that  the  jury  found  their 
verdict  solely  on  the  ground  that  there  had  been  an  eviction 
of  the  defendant  by  title  paramount.  This  was  excluded  by 
the  referee,  who  held  that  the  verdict  did  not  render  the 
question  res  adjudicata.  The  defendant  then  gave  other 
evidence  to  show  an  eviction.  The  plaintiff  offered  no  evi- 
dence as  to  the  proceedings  before  the  jury  in  the  summary 
proceedings.  The  referee  thereupon  rendered  judgment  in 
favor  of  the  plaintiff  for  one  hundred  and  sixty -five  dollars  and 
thirty -three  cents,  from  which  the  defendant  appealed. 

A.  jR.  Dyett,  for  appellant. 
JTnox  <&  Mason,  for  respondents. 

BY  THE  COURT. — DALY,  F.  J. — In  the  summary  proceedings 
instituted  by  the  plaintiff  to  dispossess  the  defendant,  the  defen- 
dant traversed  the  second  allegation  that  he  was  indebted  to 
the  plaintiff  for  two  quarters'  rent,  from  the  first  of  May  to  the 
first  of  November,  1863,  that  he  had  made  default  in  the  pay- 
ment of  the  rent,  that  he  had  held  over  after  making  default,  with- 
out the  landlord's  permission,  that  the  rent  had  been  demanded 
of  him ;  and  set  up  in  his  affidavit  the  facts  upon  which  he 
now  relies  as  constituting  the  eviction.  The  present  action 


NEW  YORK— FEBRUARY,  1865.  451 

The  Yonkers  and  New  York  Fire  Insurance  Company  v.  Bishop. 

was  brought  to  recover  the  quarter's  rent  from  the  first  of 
May  to  the  first  of  November,  1863,  so  that  the  question  at 
issue  in  this  action,  whether  the  defendant  was  indebted  for 
that  quarter,  was  at  issue  in  the  summary  proceedings. 

The  issue  created  by  the  affidavit  in  that  proceeding  pre- 
sented substantially  two  questions,  1.  Whether  the  defendant 
was  indebted  for  the  rent  alleged  in  the  plaintiff's  affidavit  to 
be  due,  and  2.  Whether  it  had  been  demanded  so  as  to  entitle 
the  plaintiff  (under  the  statute)  to  institute  the  proceedings; 
upon  either  of  which  questions,  the  verdict  of  the  jury  in  fa- 
vor of  the  defendant  was  conclusive  and  final. 

It  was  settled  by  the  highest  Court  of  authority  in  this  State, 
in  White  v.  Coatsworth  (2  Seld.,  137),  that  the  verdict  of  a  jury 
in  summary  proceedings  that  no  rent  was  due  from  the  tenant 
to  the  landlord,  was  conclusive  upon  that  question,  and  a  bar  to 
any  further  or  other  proceeding  on  the  p:\rt  of  the  landlord  for 
the  rent. 

The  jury  in  this  case  may  have  rendered  their  verdict  upon 
the  ground  that  no  rent  was  due,  and  where  that  appears 
upon  the  inspection  of  the  proceedings,  it  was  with  the  plaintiff, 
and  not  with  the  defendant,  to  show  that  that  question  was  not 
raised  upon  the  evidence  submitted  to  the  jury,  and  that  their 
verdict  upon  the  evidence  before  them  must  have  been  upon 
the  other  ground  that  no  demand  was  made  for  the  rent 
(Bagot  v.  Williams,  3  Bar.  &  Ores.,  235  ;  Stddon  v.  Tutop,  6 
T.  R.,  607 ;  Phillips  v.  Beriek,  16  Johns.,  136  ;  Hale  v.  An- 
drus,  6  Cow.,  225  ;  Snider  v.  Croy,  2  Johns.  R.,.229). 

The  defendant  offered  to  show  by  the  testimony  of  the 
jurors,  that  they  found  their  verdict  solely  upon  the  ground 
that  he  had  been  evicted  by  title  paramount,  but  the  referee 
would  not  allow  him  to  do  so,  holding  that  the  verdict  of  the 
jury  in  the  summary  proceedings  was  not  res  adjudicata  upon 
the  question  of  eviction.  In  this  he  was  in  error,  and  as  the 
plaintiff  did  not  show  that  the  question  of  the  defendant's  in- 
.  debteduess  for  the  quarter's  rent  was  not  before  the  jury,  the 
referee  should  have  found  for  the  defendant.  A  matter  which 
has  once  been  judicially  determined  between  the  same  parties, 
is  not  to  be  agitated  again  (Duchess  of  Kingston's  Case,  20 
How.  St.  Trials,  613);  and  if  the  jury  erred,  as  they  probably 


452  COUET  OF   COMMON  PLEAS. 

Smith  v.  Lewis.  • 

did,  in  concluding  that  the  facts  set  up  amounted  to  an  evic- 
tion, the  plaintiff  should  have  reviewed  their  finding  by  certio- 
rari,  and  not  have  attempted  to  try  the  question  over  again  by 
bringing  an  action  for  the  rent. 

Judgment  reversed. 


DANIEL  D.  SMITH  v.  ABRAHAM  M.   LEWIS  and  HOETON  H. 

BTTKLOCTC. 

Where  the  issues  in  an  equitable  action  are  tried  by  the  Court,  but  a  further 
inquiry  is  necessary  before  judgment,  the  entry  of  the  decision  of  the  Court 
upon  the  issues,  with  the  direction  for  the  further  proceedings,  is  an  order 
involving  the  merits  from  which  an  appeal  may  be  taken  to  the  General 
Term.  The  cases  of  Bentley  v.  Jones,  4  How.  Pr.,  335 ;  Ring  v.  Stafford, 
5  id.,  30 ;  and  Lawrence  v.  TJte  Farmer's  Loan  &  Trust  Co.,  15  id.,  57 ;  6  Duer, 
689,  examined  and  dissented  from. 

To  enable  a  party  to  review,  upon  an  appeal  from  such  an  order,  the  decision  of 
•  the  judge  upon  the  trial  of  the  issues,  a  case  may  be  made  within  ten  days 
after  notice  of  the  decision. 

Where  a  jury  trial  is  waived  in  an  action  upon  contract,  or  in  other  actions,  by 
the  assent  of  the  Court,  judgment  is  entered  up  upon  filing  the  conclusions 
of  the  judge,  and  his  decision  upon  the  trial  in  such  a  case  can  be  reviewed 
only  by  an  appeal  from  the  judgment. 

The  distinction  between  legal  and  equitable  actions,  and  the  difference  in  the 
mode  of  conducting  them,  pointed  out. 

If,  in  equitable  actions,  all  the  questions  in  controversy  between  the  parties 
have  been  determined  upon  the  hearing,  and  what  remains  is  merely  the 
machinery  set  in  motion  by  the  Court  to  carry  its  decision  into  effect,  its 
decision  is  final.  But  if  anything  is  left  involving  future  litigation,  the  deter- 
mination upon  which  might  affect  the  ultimate  adjustment  of  the  rights 
of  the  parties,  the  decision,  decree  or  order  made,  is  merely  interlocutory. 

APPEAL  by  the  defendants  Lewis  and  Blood  from  an  order 
overruling  a  demurrer  to  the  complaint,  and  from  a  judgment 
entered  at  Special  Term,  upon  a  trial  before  HILTON,  J.,  without 
a  jury. 


KEW  YOEK— MAY,   1865.  453 


Smith  v.  Lewis. 


The  action  was  brought  bj  the  plaintiff,  as  a  judgment  credi- 
tor of  the  defendants  Lewis  and  Blood,  to  have  a  certain  bill  of 
sale  of  a  stock  of  goods,  executed  by  Lewis  and  Blood  to  one 
P.  R.  Lewis,  and  by  him  assigned  to  the  defendant  Burlock, 
adjudged  and  decreed  fraudulent  and  void,  as  made  with  intent 
to  hinder  and  delay  creditors.  A  decree  was  entered  adjudg- 
ing the  sale  fraudulent  and  void,  as  against  the  plaintiffs,  and 
ordering  that  it  be  referred  to  a  referee  to  appoint  a  receiver 
of  all  the  property  purporting  to  be  thus  assigned.  It 
was  also  ordered  by  the  decree,  "that  the  defendants,  under 
the  direction  of  the  referee,  assign,  transfer  and  deliver 
over,  and  account  for  all  property  which,  at  the  commence- 
ment of  this  suit,  was  in  the  possession  or  under  the  control  of 
said  defendants,  or  either  of  them ;  and  if  a'ny  has  been  dis- 
posed of,  then  the  defendants  who  have  so  disposed  of  the  same 
must  pay  over  to  said  receiver,  under  the  direction  of  the  ref- 
eree, the  value  of  the  same." 

The  decree  also  contained  a  provision,  that  if  such  property 
should  not  produce  sufficient  in  the  hands  of  the  receiver  to 
pay  the  amount  of  the  plaintiff's  judgment,  the  plaintiff  should 
recover  judgment  against  the  defendants  for  any  deficiencies 
which  should  be  reported  by  the  referee,  after  taking  and  stat- 
ing the  receiver's  accounts. 

The  defendants  appealed  from  this  decree.  The  plaintiff 
moved  to  dismiss  the  appeal,  upon  the  ground  that  the  decree 
appealed  from  was  not  a  final  determination,  from  which  an 
appeal  could  be  taken. 

H.  H.  Burlock,  for  appellants. 
John  0.  Robinson,  for  respondent. 

BY  THE  COURT. — DALY,  F.  J. — A  judgment  is  declared  by 
the  Code,  §  245,  to  be  the  final  determination  of  the  rights 
of  the  parties  in  the  action.  In  an  equitable  action 
before  the  Code,  this  was  in  effect  what  was  known  as  a  final 
decree,  as  contradistinguished  from  one  that  was  merely  interlo- 
cutory. If  a  decree  disposed  of  all  the  questions  raised  by  the 
pleadings,  and  gave  directions  as  to  what  was  to  be  done  to* 
give  effect  to  the  decision  of  the  Court,  it  was  a  final  decree, 
although  facts  remained'  to  be  ascertained,  the  knowledge  of 


454  CO  [JET  OF  COMMON  PLEAS. 

Smith  v.  Lewis. 

which  was  essential  to  carry  out  the  purpose  of  the  Court. 
Where  this  was  the  case,  and  the  decree  gave  all  the  conse- 
quential directions  which  would  be  requisite,  when  these  facts 
were  ascertained,  for  the  final  disposition  of  the  cause,  then 
the  inquiry  respecting  them  was  regarded  as  a  collateral  pro- 
ceeding, which  in  no  way  affected  the  final  nature  of  the  decree, 
even  though  the  master's  finding  as  to  these  facts  should  be 
afterwards  disputed,  and  be  brought  before  the  Court  for  re- 
view upon  exceptions  to  his  report  (Johnspn  v.  Everett,  9  Paige, 
638  ;  Mills  v.  Hoag,  7  Id.,  18 ;  Taylor  v.  Read,  4  Id.,  567). 

This  was  a  convenient  practice,  and  one  that  may  still  be 
followed  under  the  Code ;  but  the  Court  of  Appeals  has  de- 
cided in  Tompkinsv.  Hyatt,  19  N.  Y.,  534;  in  The  Hollister 
Bank  of  Buffalo  v.  Vail,  15  Id.,  593  ;  and  in  Swarthout  v. 
Curtis,  4  Id.,  415,  that  it  is  not  applicable  in  an  appeal  to  that 
Court  where  there  can  be  but  one  appeal,  which  is  heard  upon 
the  record  transmitted  from  the  Court  below,  and  which  must 
embrace  all  the  proceedings  in  that  Court  up  to  and  including 
the  judgment.  This  is  not  the  nature  of  the  present  appeal,  for 
it  is  not  upon  a  judgment  embracing  all  the  proceedings,  as  they 
are  not  yet  at  an  end.  There  may  be  a  necessity  for  a  future 
judgment  in  the  event  of  a  deficiency,  which  cannot  be  known 
until  the  referee  has  made  his  report.  If  the  defendants,  more- 
over, have  disposed  'of  any  portion  of  the  property,  and  the 
amount  in  their  hands  should  be  insufficient  to  pay  the  plain- 
tifl's  judgment,  then,  in  pursuance  of  the  judgment  given,  they 
are  to  pay  over  to  the  receiver,  under  the  direction  of  the 
referee,  the  value  of  the  property  so  disposed  of.  As  respects 
these  questions,  therefore,  the  disposition  of  property,  the  amount 
and  the  value  of  it,  there  may  be  future  litigation,  and  the  find- 
ing of  the  referee  upon  any  of  these  points  would  be  reviewable 
upon  the  motion  to  confirm  his  report  (Elmore  v.  Thomas,  7 
Abb.  Pr.  R,  70 ;  1  Van  Santvoord's  Eq.  P.,  560).  Until  that  re- 
port is  confirmed  the  proceedings  are  not  at  an  end,  and  accord- 
ing to  the  decisions  of  the  Court  of  Appeals,  there  is  not  that 
final  determination  of  the  rights  of  the  parties  which  will  con- 
stitute a  judgment  from  which  an  appeal  will  lie  to  that  Court. 
"  It  is,"  said  Chief-Justice  BBONSON,  "  the  policy  of  the  Code  to 
allow  but  one  appeal  to  this  Court  in  the  same  cause"  (Swarthout 
v.  Curtis,  supra),  and  this  is  undoubtedly  true  as  respects  the 


NEW  YORK—MAY,  1865.  455 

Smith  v.  Lewis. 

Court  of  Appeals  ;  for  there  can- be  no  appeal  to  that  Court  ex- 
cept upon  a  judgment  upon  which  any  intermediate  order  in- 
volving the  merits  may  be  reviewed,  or  from  an  order  which  in 
effect  determines  an  action,  and  prevents  a  judgment  from  which 
an  appeal  can  be  taken,  or  from  an  order  granting  or  refusing  a 
new  trial — which  order,  however,  if  affirmed,  is  final ;  for  if  the 
order  directing  a  new  trial  was  properly  granted,  there  is  to  be 
an  absolute  judgment  in  the  Court  of  Appeals  upon  the  rights  of 
the  appellant  (§  11),  from  which  provisions  it  necessarily  follows 
that  there  can  be  but  one  appeal  to  that  Court  in  the  same 
cause. 

But  this  is  not  necessarily  so  in  this,  in  the  Supreme,  or  in 
the  Superior  Court,  where  an  appeal  lies  before  final  judgment 
from  any  order  made  at  a  special  term  involving  the  merits — 
and  when,  in  an  equitable  action,  a  decree  or  order  is  made 
which  is  interlocutory  in  its  nature,  and  not  a  final  determina- 
tion of  the  right  of  the  parties,  an  appeal  should  be  allowed 
under  the  third  subdivision  of  section  349.  In  Bentley  v.  Jones, 
(4  How.  Pr.  R.,  335,)  Justice  PARKEK  held,  that  under  the  Code 
an  order  was  the  decision  of  a  motion,  and  a  judgment  the  de- 
cision of  a  trial — which  definition  was  recognized  and  approved 
by  Justice  PAIGE  in  King  v.  Stafford  (5  How.,  30),  who  says  that 
a  decision  to  the  same  effect  was  made  at  a  previous  General 
Term  of  the  Supreme  Court  of  the  same  district.  If  this  defini- 
tion is  correct,  then  no  appeal  would  lie  in  this  case  as  from  an 
order,  as  it  was  the  decision  of  a  trial,  and  not  of  a  motion. 
These  decisions,  however,  were  made  fourteen  years  ago,  within 
two  years  after  the  provision  respecting  appeals  was  incorporat- 
ed in  the  Code,  and  when  the  effect  of  the  changes  produced  by 
the  Code  had  not  been  as  fully  examined  or  as  perfectly  under- 
stood as  they  are  at  present.  It  is  manifestly  incorrect,  for 
there  may  be  a  decision  at  the  trial  of  all  the  issues  raised  by 
the  pleadings  without  its  being  a  final  determination  of  the 
rights  of  the  parties.  This  was  so  before  the  Code,  and  it  is  BO 
still.  The  rule  before  the  Code,  in  equitable  'actions  like  the 
present,  as  I  collect  it  from  the  cases,  was  substantially  this :  If 
all  the  questions  in  controversy  between  the  parties  were  deter- 
mined upon  the  hearing,  and  what  remained  was  merely  the 
machinery  set  in  motion  by  the  Court  to  carry  its  decision  into 
effect,  then  the  decree  was  final ;  but  if  anything  was  left  involv- 


456  COURT   OF   COMMON  PLEAS. 

Smith  v.  Lewis. 

ing  future  litigation,  the  determination  upon  which  might  affect 
the  ultimate  adjustment  of  the  right  of  the  parties,  the  decree 
was  regarded  as  merely  interlocutory  (Kane  v.  Whittick,  8 
Wend.,  224  ;  Travis  v.  Waters,  12  Johns.,  500  ;  Jaques  v.  The 
Methodist  Church,  17  id.,  558  ;  Mills  v.  Hoay,  7  Paige,  18 ;  2 
Daniels'  Chancery  Practice,  638,  682),  and  this  is  a  distinction 
which  still  exists  necessarily  in  actions  for  equitable  relief. 

The  decision  rendered  in  this  case,  and  which  the  defendants 
seek  to  reverse  by  this  appeal,  was  'of  this  interlocutory  charac- 
ter. The  issues  raised  by  the  pleadings  were  determined  upon 
a  trial  before  the  Court  without  a  jury.  The  decision  of  the 
Judge  in  writing,  containing  his  conclusions  of  law  and  fact,  was 
filed,  and  the  defendant  filed  exceptions,  in  the  manner  pre- 
scribed by  the  Code,  to  enable  them  to  review  his  decision.  The 
Judge  made  an  order  which  was  substantially  in  the  form  of  the 
old  interlocutory  decree,  declaring  the  bill  of  sale  to  be  fraudu- 
lent, and  directing  that  an  account  of  the  property  should  be 
taken  before  a  referee ;  that  a  receiver  should  be  appointed ; 
that  he  should  convert  the  property  into  money,  and,  under  the 
direction  of  the  referee,  should  pay  the  plaintiff  the  amount  of 
his  judgment ;  and  if  any  surplus  remained  after  the  payment  of 
the  costs,  that  he  should  pay  it  to  the  defendant  Burlock. 

If  sufficient  property  should  be  found  in  the  defendant's  pos- 
session to  pay  the  plaintiff's  judgment  and  the  costs  of  this  suit, 
then  no  question  will  arise  as  to  the  disposition  of  property  or 
the  value  of  it,  and  no  further  judgment  will  be  necessary. 
This  cannot  be  ascertained,  however,  until  the  referee  has  made 
his  report ; — and  before  the  report  is  filed,  all  the  property  may 
be  sold  by  the  receiver,  and  the  decision  of  the  Court  carried 
out  and  executed.  The  effect  of  this  would  be,  if  the  decision 
of  the  Judge  upon  the  trial  were  erroneous,  that  the  property  in 
the  meanwhile  would  be  converted  into  money  by  a  forced  sale, 
usually  involving  a  sacrifice,  and  the  vendee  Burlock  would  be 
left,  if  the  judgment  should  be  afterwards  reversed,  to  depend 
upon  the  pecuniary  ability  of  the  plaintiff  to  make  restitution. 
The  judgment  in  fact  would  be  practically  satisfied  before  it 
could  be  formally  entered,  and  I  cannot  suppose,  in  view  of  the 
great  inconvenience  and  the  injustice  that  it  would  give  rise  to 
in  many  equitable  actions,  that  it  was  the  intention  of  the  framers 
of  the  Code  that  parties  to  such  actions  should  be  cut  off  from 


KEW  YOEK— MAY,  1865.  457 


Smith  v.  Lewis. 


all  right  of  appeal  to  the  General  Term,  until  the  judgment  was 
thus,  in  effect,  carried  out  and  executed.  Justice  DA  VIES,  in 
Tompkins  v.  Hyatt,  supra,  upon  the  suggestion  that  the  judg- 
ment might  be  completely  executed,  remarked  that  that  was  a 
matter  for  the  Court  below  to  regulate,  and  suggested  that  it 
might  stay  proceedings  until  an  opportunity  to  appeal  was 
afforded  ;  but  the  Code,  I  think,  has  provided  an  ample  remedy 
by  an  appeal  from  the  decision  as  an  order  involving  the  merits, 
which  in  the  Court  of  Appeals  could  be  reviewed  only  after 
judgment,  but  which  in  the  Supreme  Court  or  in  this  Court  may 
be  reviewed  before. 

The  Superior  Court  held  in  Lawrence  v.  The  farmers'  Loan 
and  Trust  Co.  (15  How.,  57),  that  it  was  the  intention  of  the 
Legislature  to  allow  but  one  appeal  to  the  General  Term  to  re- 
view a  decision  made  upon  a  trial,  from  its  commencement  to 
the  close  of  the  proceedings  therein,  ending  in  a  final  determin- 
ation between  the  parties  of  all  questions  involved  in  the  issue ; 
holding  in  effect  that  the  decision  of  the  Court  of  Appeals  was 
equally  applicable  to  that  Court  as  to  this,  or  to  the  Supreme 
Court.  I  apprehend  that  the  decision  was  rendered  without 
due  consideration  of  the  nature  of  equitable  actions,  and  that 
legal  and  equitable  remedies  being  so  essentially  different,  it 
does  not  follow  that  a  course  of  procedure  which  is  applicable 
to  the  one,  was  intended  to  be  pursued  in  all  cases  in  the  other. 
The  ground  taken  in  that  decision  is,  that  the  Code  declares 
(§  268),  that  questions  of  law  or  fact  which  arise  upon  a  trial  by 
the  Court,  can  be  reviewed  only  by  a  case  or  exceptions,  in  like 
manner  as  upon  a  trial  by  jury,  to  be  made  up  within  ten  days 
after  notice  of  the  judgment.  The  construction,  however,  wliich 
I  put  upon  this  provision,  is,  that  it  was  meant  to  apply  only  in 
actions  triable  by  a  jury,  where  a  trial  by  jury  being  waived, 
the  action  is  tried  by  the  Court,  and  to  trials  purely  of  an  issue  of 
law  (§  266).  By  §  267  the  judge  is  to  find  his  findings  of  fact  and 
conclusions  of  law  separately,  which  are  to  be  in  writing,  to  be 
filed  with  the  clerk,  and  the  judgment  is  to  be  entered  up  accord- 
ingly. This  is  the  course  of  procedure  where  the  parties  in  an 
action  on  contract  waive  a  trial  by  jury,  or  in  other  actions  if  the 
assent  of  the  Court  is  obtained  (§  266).  It  was  manifestly  meant 
to  apply  to  those  actions  where  a  final  judgment  can  be  entered 
np  immediately  upon  the  decision  of  the  Court,  as  it  may  be 


458  COUKT  OF  COMMON  PLEAS. 

Smith  v.  Lewis. 

upon  the  verdict  of  a  jury :  To  what  were  formerly  known  as  ac- 
tions at  law,  involving  only  a  legal  remedy,  and  not  where  equi- 
table relief  is  the  object  of  the  action,  and  where,  after  the  deci- 
sion of  the  issue  by  the  Court,  further  inquiries  may  be  neces- 
sary, and  further  litigation  before  a  judgment  can  be  rendered 
which  is  a  final  determination  of  all  the  rights  of  the  parties. 
Such  an  action  may  be  tried  by  the  Court,  or  they  may  order 
the  issues  on  any  specific  question  of  fact  involved  in  it  to  be 
tried  by  a  jury,  or  they  may  refer  it,  if  the  examination  of  a 
long  account  is  involved,  or  the  taking  of  one  is  necessary  for 
the  information  of  the  Court  (§  254).  (McCarty  v.  Edwards, 
24  How.,  236).  Any  decision  involving  the  merits,  made  in 
the  course  of  such  an  equitable  action,  must  take  the  form  of  an 
order  to  be  entered  by  the  clerk  (Smith  v.  Dodd,  3  E.  D.  Smith, 
215),  upon  the  direction  of  the  judge  who  made  the  decision, 
and  may  be  appealed  from  under  subdivision  3  of  §  349.  If  it 
involves  the  merits,  or  the  equitable  issues  have  been 
tried  and  disposed  of  by  the  Court,  a  case  may  be  made  under 
the  34th  rule,  within  ten  days  after  the  filing  of  written  notice 
of  the  decision. 

In  Wood  v.  Hunt  (38  Barb.,  302),  where  a  conveyance  was  set 
aside  upon  the  ground  that  it  was  fraudulent  as  against  credit- 
ors, and  an  accounting  was  ordered,  Justice  LEONARD  was  of  the 
opinion  that  the  decision  of  the  judge  upon  the  trial  might  be 
reviewed  by  appealing  from  it  as  an  order  under  the  subdivision 
of  the  349th  section  before  referred  to — and  this,  in  my  judg- 
ment, is  the  proper  course  to  pursue,  as  it  will  secure  to  the  par- 
ty the  right  of  review,  and  a  stay  of  proceedings,  without  in  the 
least  conflicting  with  the  decision  of  the  Court  of  Appeals. 

Motion  to  dismiss  the  appeal  denied. 


.NEW    YORK— FEBRUARY,  1865.  459 


Schuschard  v.  Reimer. 


FREDERICK  SCHUSCHAED  and  FREDERICK  GEBHAED  v.  THEODORE 
REIMER,  impleaded,  &c. 

An  appeal  from  a  judgment  in  defendant's  favor  does  not  abate  by  the  defen- 
dant's death. 

The  sole  defendant  in  an  action  having  obtained  a  judgment  in  his  favor,  died 
pending  an  appeal  therefrom,  proceedings  on  the  judgment  being  stayed  in 
the  mean  time ; — Held,  that  the  personal  representatives  of  such  defendant 
have  a  right  to  have  themselves  made  parties  to  the  appeal,  and  this 
should  be  done  by  motion  to  the  Court  in  the  manner  provided  by  §  121  of 
the  Code  of  Procedure. 

APPEAL  by  the  administratrix  of  the  defendant  Theodore 
Reimer,  deceased,  from  an  order  at  Special  Terra,  denying  a 
motion  to  revive  and  continue  the  action. 

The  defendant  Reime*  only  was  served  with  process,  and 
alone  appeared  in  the  action.  At  the  trial  he  obtained  a  judg- 
ment in  his  favor  for  the  sum  of  one  hundred  and  ninety-one 
dollars  costs.  The  plaintiffs  served  a  notice  of  appeal,  and  a 
copy  of  their  proposed  case,  with  a  stay  of  proceedings  pending 
the  appeal.  The  defendant  died  the  next  day,  and  his  widow 
obtained  letters  of  administration  upon  his  estate. 

The  plaintiffs  having  refused  to  apply  to  have  the  action 
continued  against  the  defendant's  representatives,  the  adminis- 
tratrix obtained  an  order  to  show  cause  why  the  action  should 
not  be  revived,  she  being  made  a  party  thereto. 

The  Court  having  denied  the  motion,  the  administratrix  ap- 
pealed to  the  General  Term. 

Van  Pelt  <&  Hutt,  for  appellant. 
Plait,  Gerard  <&  Buckley,  for  respondents. 

BY  THE  COURT. — DALY,  F.  J. — In  Keene,  v.  Lafarge,  1  Bosw., 
671,  the  defendant  died  after  issue  was  joined,  and  before  judg- 
ment, and  Chief  Justice  BOSWORTH  held  that  in  that  case  an 
application  by  the  representatives  of  the  deceased  defendant  to 
have  the  suit  continued  could  not  be  entertained.  He  was  of 


460  COURT  OF  COMMON  PLEAS. 

Scbuschard  v.  Reimer. 

opinion  that  section  121  of  the  Code  was  designed  to  confer , 
iiffon  the  representatives  of  a  deceased  sole  plaintiff  only  the 
right  to  continue  the  action  or  abandon  it,  and  not  to  enable 
the  representatives  of  a  deceased  sole  defendant  to  compel  the 
plaintiff  to  continue  the  action  against  his  will ;  and  he  founded 
his  opinion  upon  the  absence  of  any  provision  of  the  Re  vised 
Statutes  broad  enough  to  cover  such  a  case,  and  upon  the  con- 
struction that  section  121  authorizes  the  representatives  of  a 
deceased  party  only  to  make  such  a  motion  within  a  year  as 
may  be  made  after  a  year  upon  a  supplemental  complaint.  It 
may  be  that  this  construction  was  a  correct  one  in  the  case 
which  was  presented  to  Chief  Justice  BOSWORTH,  but  it  will  not 
apply  in  the  case  which  is  now  before  us. 

In  the  present  case  the  defendant  died  after  he  had  obtained 
judgment  against  the  plaintiffs  for  costs,  and  after  they  had 
appealed  from  the  judgment.  If  no  appeal  had  been  taken, 
his  personal  representative  could  have  compelled  the  payment 
of  the  judgment  by  bringing  an  action  upon  it,' which  in  that 
case  would  have  been  the-  appropriate,^  not  the  only,  remedy 
(Cameron  v.  Young,  6  How.  R.,  373  ;  Thurston  v.  I&ing,  1 
Abbott  R.,  126).  But  if  at  the  time  of  defendant's  death,  the 
ordinary  undertaking  upon  appeal  was  given  to  stay  the  pro- 
ceedings upon  the  judgment  until  the  hearing  of  the  appeal, 
his  representatives  could  not  bring  such  an  action,  the  proceed- 
ing upon  the  judgment  being  stayed. 

It  does  not  appear  in  this  case  whether  such  an  undertaking 
was  given  or  not,  nor  is  it  material,  since  it  has  been  settled 
since  the  time  of  COKE,  that  the  proceedings  for  the  review  of 
a  judgment  upon  error  do  not  abate  by  the  death  of  the  defen- 
dant, or  of  one  of  the  defendants,  in  error,  but  his  death  being 
suggested  upon  the  roll,  the  writ  of  error  proceeds.  If  he  died 
before  the  assignment  of  error,  his  executor  might  have  a  soire 
facias  quare  executionem  non,  to  compel  the  plaintiff  to  assign 
error,  or  if  he  died  after,  they  might  proceed  as  if  the  defen- 
dant were  living,  until  the  judgment  was  affirmed  (Jaques  v. 
Cesar,  2  Saund.  R.,  101 ;  Bromley  v.  Littleton,  Yelv.  R.,  113  ; 
Wicket  v.  Creamer,  1  Salk.  R.,  264;  1  Ld.  Raym.  R,,  439; 
Fowles  v.  Bridges,  1  Show.  R.,  186  ;  Bowes  v.  Powlett,  Sir  F. 
Moore's  R.,  701 ;  Wright  v.  Treweeke,  Barnes'  Notes,  432) ;  and 
such  was  the  practice  both  before  and  after  the  passage  of  the 


NEW  YORK— FEBRUARY,  1865.  461 


Schuschard  v.  Reimer. 


Revised  Statutes  (2  Dunlap's  Practice,  1144: ;  Graham's  Prac- 
tice, 965,  2  ed.). 

The  parties  upon  an  appeal  from  a  judgment  occupy  the 
same  relative  position  that  was  occupied  before  the  Code  by 
the  parties  u'pon  a  writ  of  error.  The  defendant  in  this  case 
was  the  defendant  in  the  judgment,  and  the  defendant  upon 
the  appeal  holds  the  same  position  as  a  defendant  in  error 
under  the  former  practice. 

The  Code  has  abolished  the  writ  of  scire facias,  and  has 
established  in  its  place  the  more  summary  and  less  expensive 
proceeding  for  continuing  an  action  provided  for  in  section  121 ; 
and  in  other  cases  where  the  writ  of  scire  facias  was  the  only 
mode  in  which  the  personal  representatives  of  a  deceased  party 
could  compel  the  payment  of  a  judgment  obtained  by  him  in 
his  life  time,  they  have  given  a  remedy  by  a  civil  action 
(§  428). 

The  writ  of  scire  facias  would  lie  wherever  there  was  a  new 
person  to  be  benefited  or  charged  by  the  execution  of  the  judg- 
ment, to  make  him  a  partj  to  it  (Penoyerv.  JSrace,  1  Ld.  Raym. 
R.,  244 ;  t  Salk.,  319 ;  Johnson  v.  Parmely,  17  Johns. 
R.,  271 ;  2  Tidd's  Practice,  1114,  1118,  9th  Lond.  Ed.);  and 
that  writ  being  now  abolished,  and  the  personal  representatives 
of  the  deceased  defendant  having  an  interest  in*  the  j  udgment 
which  was  recovered  by  him,  and  an  interest  in  the  appeal 
that  was  pending  at  the  time  of  his  death,  they  have  the  right 
to  have  themselves  made  parties  to  the  appeal,  that  they  may 
obtain  an  affirmance  of  the  judgment,  and  the  proper  mode  of* 
doing  it,  by  analogy  to  the  former  practice,  is  by  a  motion  to 
the  Court,  in  the  manner  provided  for  in  section  121  of  the 
Code.  The  order  denying  them  that  right  should  therefore  be 
reversed. 

Order  reversed. 


4C2  COURT  OF  COMMON  PLEAS. 


The  People  ex  rel.  Larocque  v.  Murphy. 


THE  PEOPLE  OF  THE  STATE  OF  NEW  YOBK  on  the  relation  of 
JEREMIAH  LAEOCQDE  v.  E.ICHAED  B.  MURPHY. 

Where  an  attachment  was  issued  against  a  party  as  for  a  contempt,  granted 
on  an  affidavit  verified  before  a- notary  in  a  county  other  than  that  for 
which  he  was  appointed, — Held,  that  such  attachment  was  issued  without 
due  proof  by  affidavit  as  required  by  statute,  and  that  the  attachment  prder 
granted  thereon,  and  all  proceedings  thereunder,  should  be  vacated  and  set 
aside,  as  granted  without  authority.  And  this,  notwithstanding  sufficient 
may  have  appeared  in  the  party's  answers  to  the  interrogatories  subse- 
quently filed  without  resorting  to  the  affidavits  upon  which  the  attachment 
was  granted,  the  proceeding  having  been  void  from  its  inception. 

On  a  motion  to  commit  a  party  for  contempt,  he  should  be  permitted  to  read, 
in  addition  to  his  answers  to  the minterrogatories  propounded  to  him,  affida- 
vits showing  the  absence  of  any  wilful  disobedience  of  the  order  for  the 
violation  of  which  it  is  sought  to  punish  him. 

Where  a  statute  regulating  the  course  of  procedure  for  a  criminal  contempt 
says  that  the  court  "  may"  receive  affidavits,  the  exercise  of  a  sound  legal 
discretion  requires  that  affidavits  should  not  be  excluded,  unless  they 
are  manifestly  irrelevant  to  the  question.  (GAKDOZO,  J.) 

The  proper  remedy  for  a  party  committed  for  a  contempt  under  a  void  pro- 
cess, is  to  move  the  Court  upon  affidavits  disclosing  the  fact,  for  an  order 
vacating  it,  and  Discharging  the  party.  And  where  the  judge  who  issued 
such  process  is  no  longer  a  member  of  the  Court,  the  motion  may  be  made 
before  any  judge  sitting  at  Special  Term. 


A  motion  cannot  be  entertained  at  Special  Term  to  dismiss  an  appeal  from 
an  order  made  at  Special  Term.  In  such  a  case  the  motion  to  dismiss  the 

'  appeal  must  be  made  at  the  General  Term.  A  motion  to  dismiss  an  appeal 
from  the  Marine  or  Justices'  Courts  to  this  Court,  however,  should  be  made 
at  the  Special  Term. 

APPEAL  by  the  relator  from  an  order  at  Special  Term,  vacat- 
ing an  order  made  by  HILTON,  J.,  November  19,  1863,  adjudg- 
ing the  respondent  Murphy  guilty  of  a  contempt ;  and  also  va- 
cating and  setting  aside  all  proceedings  subsequent  to  such 
order. 

The  relator,  having  brought  an  action  against  the  respondent, 
to  perpetually  enjoin  him  from  keeping  or  sawing  marble  on  the 
street,  opposite  to  the  relator's  dwelling  house,  No.  29  West 
Thirtieth  street,  in  the  city  of  New  York,  and  praying  that  the 
relator  might  be  quieted  in  the  possession  and  enjoyment  of  his 
house,  &c.,  obtained  a  preliminary  injunction  at  Special  Term, 


NEW  YORK— MAY,  1865.  463 

The  People  ex  rel.  Larocque  v.  Murphy. 

(BRADY,  J.),  whereby  Murphy  was  ordered  absolutely  to  desist 
and  refrain  from  depositing,  keeping  or  sawing  marble  in  the 
street  opposite  said  dwelling  house  until  the  further  order  of 
the  Court. 

On  the  7th  day  of  October  an  attachment  was  issued  against 
Murphy  as  for  a  contempt  for  violation  of  such  injunction  or- 
der, and  he  was  taken  into  custody  by  the  sheriff  and  held  un- 
der bail. 

The  relator  having  filed  interrogatories,  and  the  respondent 
having  filed  his  answers  thereto,  the  relator,  on  such  inter- 
rogatories and  answers,  applied,  on  notice,  to  the  Special  Term 
for  an  order  adjudging  the  respondent  guilty  of  a  contempt. 

On  the  hearing  of  this  motion,  the  respondent's  counsel 
asked  leave  to  be  permitted  to  read  affidavits  to  show  the  rela- 
•tor's  motives  in  prosecuting  the  proceeding,  the  absence  of  in- 
tention on  the  part  of  the  respondent  to  disobey  any  order  of 
the  Court,  and  to  contradict  the  allegations  contained  in  the 
relator's  complaint  and  moving  papers. 

The  Court  (HILTON,  J.)  refused  to  allow  such  additional  affi- 
davits to  be  read  on  the  ground  that  the  answers  to  the  inter- 
rogatories were  undisputed,  and  that  it  appeared  from  .them 
that  the  respondent  was  guilty  of  the  misconduct  alleged.  The 
Court  thereupon  granted  the  order  adjudging  the  defendant 
guilty  of  a  contempt,  and  imposed  a  fine  of  fifty  dollars,  the 
respondent  to  stand  committed  to  the  common  jail  of  the 
county  until  paid. 

The  respondent's  counsel  moved  to  vacate,  set  aside,  and  an- 
nul the  attachment  issued  on  theWTth  day  of  October,  1863,  and 
all  the  proceedings  subsequent  thereto  and  founded  thereon,  on 
the  ground,  among  others,  that  the  affidavits  upon  which  that  at- 
tachment was  granted  vrere  verified  in  the  City  of  New  York  be- 
fore a  notary  public  appointed  for,  and  residing  in,  the  County 
of  Kings,  and  therefore  did  not  constitute  legal  evidence  of  the 
allegations  therein  contained.  It  was  also  moved  that  the  or- 
der of  HILTON,  J.,  dated  November  19,  1863,  and  the  warrant 
of  commitment  issued  under  it,  be  vacated  and  set  aside  on  the 
ground,  among  others,  that  the  previous  proceedings  being  ir- 
regular, the  judge  was  without  jurisdiction,  and  that  the  re- 
spondent should  have  been  allowed  to  read  additional  affidavits 
on  the  motion  in  support  of  respondent's  answers  to  the  inter- 


464  COURT  OF  COMMON  PLEAS. 

The  People  ex  rel.  Larocque  v.  Murphy. 

rogatories  filed,  purging  him  of  a  criminal  contempt  and  contra- 
dicting the  statements  in  the  relator's  papers  upon  which  the 
attachment  was  granted. 

The  motion  came  on  before  CAEDOZO,  J.,  and  an  order  was 
filtered  vacating  the  order  of  November  19th,  1863,  and  all 
subsequent  proceedings,  including  the  warrant  or  precept  for 
commitment.  The  following  opinion  was  rendered  : 

CAEDOZO,  J. — I  have  very 'carefully  considered  the  motion  in 
lliis  matter,  and  have  come  to  the  conclusion  that  I  ought  not, 
from  motives  of  delicacy,  to  hesitate  to  interfere  where  the 
liberty  of  the  citizen  is  concerned. 

I  do  not  doubt  that  if  the  judge  who  granted  the  motion  to 
commit  were  yet  on  the  bench,  it  would  be  perfectly  proper  to 
apply  to  him  at  Special  Term  to  correct  any  inadvertence  into 
which  he  might  have  fallen. 

I  have  myself  made  similar  motions  when  at  the  bar,  and  I 
think  it  is  clear  that  it  is  the  right  of  counsel  (notwithstanding  a 
remedy  by  appeal  may  exist)  to  apply  to  the  judge,  and  that 
it  is  the  duty  of  the  judge,  when  convinced  of  having  been  in 
error,  especially  iii  proceedings  of  this  description,  to  correct 
that  error  on  motion  at  Special  Term. 

It  is  not  unlike  motions  which  are  constantly  made,  in  the 
General  Term  and  in  the  Court  of  Appeals,  for  reargumenfc  on 
the  ground  of  some  mistake  of  law  or  fact  in  the  decision  of 
the  Court ;  and  I  see  no  reason  why,  in  a  proper  case,  similar 
motions  may  not  be  made  at  Special  Term. 

Such  motions  should  not  bo*  entertained  as  a  general  rule, 
but  where  the  error  complained  of  affects  a  man's  liberty,  he 
ought  not  to  be  compelled  to  remain  in  jail  until  his  appeal  can 
be  heard  and  decided  at  General  Term,  if  the  speedier  remedy 
by  motion  at  Special  Term  is  open  to  him. 

The  fact  that  the  particular  judge  who  committed  the  inad- 
vertence is  no  longer  a  member  of  the  Court  cannot  affect  the 
right  of  the  party  prejudiced. 

The  Court  remains  the  same,  though  its  members  may  have 
changed. 

I  am  led,  on  a  careful  examination  of  all  the  papers,  to  the 
belief  that  the  judge  refused  to  allow  affidavits  to  be  read  by 
Mr.  Murphy,  in  addition  to  the  answers  to  the  interrogatories 


YOKE—  MAY,  1865.  465 


The  People  ex  rd.  Larocque  v.  Murphy. 


propounded  by  him,  under  a  misapprehension  either  of  the 
law  or  the  fact  ;  and  in  either  view  I  think  relief  must  be 
granted. 

J  think  the  papers  on  this  motion  show  very  conclusively 
that  the  counsel  for  Mr.  Murphy  asked  leave  to  read  affidavits 
in  addition  to  the  answers  ;  and  that  one  point  to  which  he 
stated  those  affidavits  were  addressed  was  to  show  an  absence 
of  any  wilful  disobedience  of  the  injunction  for  the  violation 
of  which  it  was  sought  to  punish  the  defendant. 

If  the  judge  refused  to  receive  the  affidavits  because  he  sup- 
posed he  had  no  power,  he  clearly  erred,  and  had  this  motion 
been  addressed  to  him,  he  could  not  have  properly  done  other- 
wise than  reconsider  and  correct  his  ruling.  If  he  rejected 
them  because  the  motion  to  punish  was  based  alone  upon  the 
answers  of  the  defendant  to  the  interrogatoties,  and  that, 
therefore,  additional  affidavits  were,  in  his  judgment,  unneces- 
sary, I  think  he  only  misapprehended  the  fact  as  to  the  papers 
which  were  before  him  on  the  motion  ;  but,  even  if  he  were 
correct  fn  supposing  that  the  motion  was  made  upon  the  an- 
swers exclusively,  I  think,  in  favor  of  the  liberty  of  the  citizen, 
Ke  would,  upon  more  mature  reflection,  and  I  ought  now  to,lay 
down  a  different  rule. 

Upon  looking  into  the  affidavits  which  were  sought  to  be 
read  by  the  defendant,  I  cannot  say  that  the  matters  contained 
in  them  would  not  have  influenced  the  mind  of  the  judge  upon 
the  question  whether  a  wilful  contempt  had  been  committed  ; 
and  that  when,  in  a  proceeding  of  this  description,  where 
punishment  for  an  act  in  the  nature  of  a  criminal  offence  is 
sought  to  be  inflicted,  the  statute  says  the  Court  "  may"  receive 
affidavits,  although  the  word  "  may  "  probably  does  not  neces- 
sarily mean  must,  yet  the  exercise  of  a  sound  legal  discretion 
requires  that  the  affidavits  should  not  be  excluded,  unless  they 
are  manifestly  irrelevant  to  the  question. 

I  think,  therefore,  that  the  affidavits  ought  to  have  been  re- 
ceived, and  that  the  proceeding  being  in  this  court,  a  motion- 
to  a  judge  at  Special  Term  to  reconsider  the  ruling  is  perfectly 
proper.  Of  course  such  motion  should  only  be  made  before 
and  entertained  by  the  judge  who  originally  made  the  order, 
unless,  as  in  the  present  instance,  he  has  ceased  to  be  a  mem- 

ber of  the  Court. 

30 


466  COUKT  OF  COMMON  PLEAS. 

The  People  ex  rel.  Larocque  v.  Murphy. 

The  defendant  having,  in  my  judgment,  been  deprived  of  a 
full  hearing  on  the  question  of  his  guilt,  the  order  adjudging 
him  guilty  of  contempt,  and  all  subsequent  proceedings,  must 
be  vacated  and  set  aside.  The  relator  can  then,  if  he  thinks 
proper,  renew  the  motion  to  punish  for  contempt.  Having 
come  to  this  conclusion,  I  have  not  examined  the  other  points 
raised  by  the  defendant. 

^Neither  party  will  have  costs  of  this  motion,  and  the  defend- 
ant must  stipulate  not  to  bring  any  action  for  false  imprison- 
ment by  reason  of  any  irregularity  in  the  proceedings  to  obtain 
the  order  or  warrant  of  commitment. 

From  this  order  the  relator  appealed  to  the  General  Term. 
The  respondent  moved  at  Special  Term  to  dismiss  the  appeal. 
The  motion  wasgdenied,  with  the  following  opinion  by 

CAKDOZO,  J. — The  proposition  that  a  judge  may  decide 
whether  an  order  made  by  himself  be  appealable  or  not,  would, 
if  sound,  vest  very  great  power  in  one  man  ;  a  power  liable  to 
great  abuse.  I  should  be  unwilling,  except  upon  the  plainest 
adjudications,  to  declare  that  so  much  responsibility  belongs  to 
any  other  judicial  officer,  or  to  arrogate  such  to  myself. 

Singular,  however,  as  it  may  seem,  there  appeal's  to  be  at 
least  color  of  authority  for  it,  so  far  as  the  practice  of  this  court 
is  concerned.  It  was  so  held  in  Griswold  v.  Van  Deusen  (2  E. 
D.  Smith,  178),  and  I  find,  on  reference  to  the  minutes  of  the 
Court  at  Special  Term,  other  instances  where  motions  to  dis- 
miss appeals  have  been  entertained  and  granted  at  Special 
Term.  Opposed  to  this  is  what  I  have  always  supposed  to  be 
well  settled  practice,  viz. :  that  the  appellate  tribunal  is  the 
judge  of  its  own  jurisdiction  (Barnum,  v.  The  Seneca  County 
Bank,  6  How.  Pr.  R,  82). 

The  cases,  however,  of  dismissal  by  the  Special  Term  appear 
all  to  have  been  of  appeals  from  Justices'  Courts,  and  I  think 
this  must  be  the  distinction.  When  an  appeal  is  taken  frpm  a 
Justice's  Court,  it  is  not  to  the  General  Term  of  the  Court,  but 
to  the  "  Court  of  Common  Pleas"  (Code,  §  352).  The  argu- 
ment on  the  appeal  is  to  be  heard  at  General  Term  (§  364),  but 
the  appeal  itself  is  to  the  "Court  of  Common  Pleas,"  and  it 
may  be  that,  in  such  cases,  any  branch  of  this  Court  might  en- 
tertain the  motion  to  dismiss. 


NEW  YORK— MAY,   1865.  46T 

The  Peopled  rel.  Larocque  v.  Murphy. 

But  here  the  appeal  is  to  the  General  Term,  and  I  think  that 
alone  has  the  power  to  decide  upon  the  appealability  of  the 
order. 

The  present  motion  must  be  denied,  but  without  costs  ;  and 
the  defendant's  counsel  may,  if  he  desire,  have  an  order  to  show 
cause,  returnable  at  the  General  Term  on  Monday  next,  why 
the  appeal  should  not  be  dismissed. 

• 

An  order  to  show  cause,  returnable  at  the  General  Term, 
was  thereupon  entered.  The  motion  to  dismiss  the  appeal  be- 
ing denied  by  the  General  Term,  the  appeal  was  argued. 

William  J.  Sedbury  and  Edwards  Pierrepont,  for  the  appel- 
lant. 

George  Owen  and  John  Graham,  for  respondent. 

BY  THE  COURT. — DALY,  F.  J. — When  the  misconduct  is  not 
committed  in  the  presence  of  the  Court,  the  statute  requires 
due  proof  by  affidavit  of  the  facts  charged.  This  is  requisite  to 
give  the  Court  jurisdiction  to  act  in  the  matter  of  a  contempt 
alleged  to  have  been  committed  out  of  its  presence  ;  and  with- 
out this,  a  court  has  no  authority  to  order  a  party  to  be  arrested 
and  brought  before  it,  and  to  adjudge  upon  the  matter  of  the 
alleged  contempt.  This  was  the  law  before  the  Revised 
Statutes  were  passed,  and  upon  a  principle  as  old  as  the 
reign  of  Edward  III.,  that  no  man  could  be  deprived  of  his 
liberty  except  upon  due  process  of  law,  it  was  doubted  in 
North  v.  Wiggins  (Strange  R.,  1068)  whether  the  Court  of 
King's  Bench  had  authority  to  order  a  man  in  the  first  instance 
to  be  arrested  and  brought  before  it  to  answer  for  a  contempt, 
unless  upon  two  affidavits  ;  and  in  Anon.  (3  Atk.,  219),  Lord, 
HARDWICKE  refused  to  do  so ;  and  as  there  was  but  one  affidavit 
to  prove  that  the  contempt  had  been  committed,  he  simply 
made  an  oider  that  the  offender  show  cause. 

It  was  presumptively  shown  upon  this  motion,  that  the  affi- 
davits upon  which  Judge  BRADY  ordered  the  attachment  to  be 
issued  were  made  before  a  person  who  had  no  authority  to  take 
the  deposition,  and  the  evidence  offered  to  show  this  was  not 
controverted  or  disproved  upon  this  motion.  The  attachment 
was  therefore  issued  without  due  proof  by  affidavit,  and 


463  COUKT   OF  COMMON  PLEAS. 

The  People  ex  rel.  Larocqu»v.  Murphy. 

was,  together  with  the  commitment  founded  upon  it,  en- 
tirely without  authority.  It  may  be  said  that  sufficient  ap- 
peared in  the  defendant's  answers  to  the  interrogatories,  with- 
out resorting  to  the  affidavits  upon  which  the  attachment  was 
issued,  to  show  that  he  had  been  guilty  of  a  contempt.  I 
doubt  if  his  answers  to  the  interrogatories  make  out  a  case 
of  intentional  disobedience  to  the  order  of  the  Court ;  or 
if  they  do,  I  doubt  if  that  would  help  the  matter.  It  is  suf- 
ficient to  say  that  he  was  arrested,  brought  before  the  Court, 
and  compelled  to  answer  interrogatories  without  any  authority 
in  law,  and  as  the  subsequent  commitment  necessarily  relates 
back  to,  and  includes,  the  facts  and  allegations  which  consti- 
tuted the  ground  for  his  arrest  in  the  first  instance,  the  one  can- 
not be  severed  from  the  other.  The  proceeding,  in  its  incep- 
tion, was  void  for  the  want  of  jurisdiction  (Demming  v. 
Conjoin,  11  "Wend.,  647),  and  as  the  commitment  was  founded 
upon  the  proceeding,  it  was  equally  void. 

The  defect  of  the  want  of  jurisdiction  was  available  either 
before  or  after  the  commitment  (Barren  v.  fitch,  15  Johns., 
141),*and  the  remedy  which  the  defendant  resorted  to  was  a 
proper  one  (People  v.  Nevins,  1  Hill,  159).  If  he  had  appealed 
from  the  order  committing  him  to  the  General  Term,  his  ap- 
peal would  have  been  dismissed,  for  no  appeal  lies  upon  a  com- 
mitment for  a  contempt,  unless  there  was  a  want  of  jurisdiction 
(Mitchell's  Case,  12  Abbott,  249),  and  that  would  not  have  ap- 
peared Upon  a  review  of  the  proceedings  before  Judge  HILTON. 
He  had  no  remedy  by  habeas  corpus,  for  the  warrant  of  commit- 
ment was  regular  upon  its  face,  as  it  was  in  a  matter  of  which  the 
Court  had  general  jurisdiction,  and  an  officer  upon  habeas  cor- 
pus could  not  go  beyond  that,  but  would  be  bound  to  pre- 
sume, the  Court  being  a  court  of  record,  that  it  had  acquired 
jurisdiction  of  the  defendant's  person  (The  People  v.  Nevins, 
1  Hill,  154  ;  Foot  v.  Stevens,  17  Wend.,  483  ;  Van  Alstyn  v. 
Enoin,  1  Kern.,  331 ;  Skinnion  v.  Kelly,  18  N.  Y.,  356).  The 
proper  remedy,  then,  the  commitment  being  void,  or  rather 
voidable,  was  to  move  the  Court,  by  which  it  was  granted  upon 
affidavits  disclosing  the  facts  which  showed  aliunde  that  the 
whole  proceeding  was  void,  for  an  order  vacating  it  and  dis- 
charging the  defendant  (The  People  v.  Nevins,  1  Hill,  159). 


NEW  YORK— JULY,   1865.  469 


Baker  v.  Connell. 


If  the  fact  disclosed  upou  this  motion  had  been  presented  to 
Judge  HILTON,  he  would  have  been  bound  to  dismiss  the  pro- 
ceeding. Very  possibly  it  was  not  known  while  the  proceed- 
ings were  pending  before  him,  but  it  was  available  at  any  time, 
and  the  proper  way  to  bring  it  to  the  knowledge  of  the  Court 
was  by  a  motion  to  vacate  the  order  of  commitment  and  all  the 
proceedings  upon  which  it  was  founded. 

The  order  of  Judge  CARDOZO  should  therefore  be  affirmed. 


WILLIAM  BAKER  v.  JOHN  M.  CONNELL. 

Parol  evidence  is  admissible  to  show  that  the  consideration  expressed  in  an 
instrument  under  seal,  and  therein  acknowledged  to  have  been  received, 
was  not  in  fact  paid ;  subject  to  the  restriction  that  such  evidence  shall  not 
have  the  effect  of  defeating  the  instrument,  so  as  to  render  it  void  for  the 
want  of  any  consideration. 

The  amount  of  damages  recoverable  in  an  action  brought  for  a  sum  fixed  by 
agreement  as  liquidated  damages,  may  be  reduced,  by  proving  that  a  cer- 
tain portion  of  the  consideration  expressed  in  the  agreement  has  not  been 
paid.  For  such  portion  the  defendant  has  a  cause  of  action  arising  out  of 
the  same  transaction,  and  may  set  it  off  against  the  plaintiff's  claim  for 


APPEAL  by  the.defendants  on  a  case  and  exceptions. 

« 

The  action  was  brought  to  recover  two  thousand  dollars, 
being  the  sum  settled  and  fixed  as  liquidated  damages  to  be 
}>aid  by  the  defendant  in  case  of  a  violation  by  him  of  an 
agreement,  under,  seal,  entered  into  between  the  parties, 
whereby  the  defendant  in  consideration  of  $3,000,  "  the  receipt 
whereof  is  hereby  acknowledged  "  sold  and  assigned  to  the 
plaintiff  all  his  stock  in  trade,  good  will  of  business,  &c.,  and 
covenanted  under  the  penalty  of  forfeiture  of  $2,000,  not  to 
resume,  carry  on,  or  conduct  in  the  City  of  New  York,  the 
business  of  a  composition  onmment  manufacturer. 

The  answer  averred  that  $2,000  was  the  real  consideration 


470  COURT  OF  COMMON  PLEAS. 

Baker  v.  Council. 

money  of  the  agreement,  and'denied  that  the  plaintiff  had  Buf- 
fered damages. 

On  the  trial,  the  defendant's  counsel  offered  to  prove  that 
the  sum  of  three  thousand  dollars  was  never  paid  as  considera- 
tion of  the  agreement  by  the  plaintiff  to  the  defendant. 

The  plaintiff  objecting,  the  objection  was  sustained.  The 
Court  directed  the  jury  to  find  a  verdict  for  plaintiff,  which 
they  did  for  two  thousand  four  hundred  and  forty-three  dollars. 

The  Court  allowed  the  defendant  twenty  days  to  make  a 
case  and  bill  of  exceptions,  tlxe  argument  thereon  to  be  heard 
in  the  first  instance  by  the  Court  at  the  General  Term. 

George  Carpenter,  for  appellant. 
George  W.  Paine,  for  respondent. 

BY  THE  COURT. — DALY,  F.  J. — The  defendant  averred  in  his 
answer  that  but  two  thousand  dollars  of  the  three  thousand 
acknowledged  in  the  agreement  to  have  been  received  had 
been  paid,  and  upon  the  trial  offered  to  show  that  the  three 
thousand  dollars  were  never  paid  by  the  defendant.  This  I  think 
he  had  a  right  to  show.  Although  an  instrument  under  seal 
acknowledges  .that  the  consideration  expressed  in  it  has  been 
received,  parol  evidence  is  admissible  to  show  that  it  has  not 
been  paid,  so  far  as  the  question  may  affect  the  ultimate  right 
of  the  parties,  the  only  restriction  that  has  been  imposed  being 
that  such  evidence  shall  not  have  the  effect  of  defeating  the 
instrument  so  as  to  render  it  void  for  the  want  of  any  consid- 
eration (Shephard  v.  Little,  14  Johns.,  210 ;  McCrea  v.  Pur- 
mort,  16  "Wend.,  460 ;  Bingham  v.  Weidermax,  1  N.  Y.  R.  [1 
Comst.],  509). 

Such  could  not  be  the  effect  of  the  evidence  here,  as  the 
answer  admitted  that  two  thousand  dollars  had  been  paid,  and 
the  defendant  simply  sought  by  his  answer  to  avail  himself,  in 
the  action,  of  the  defence  that  he  had  a  subsisting  claim 
against  the  plaintiff  under  the  same  contract  to  the  extent  of 
one  thousand  dollars.  If  this  one  thousand  dollars  had  not 
been  paid,  the  defendant  could  maintain  an  action  to  recover 
it,  notwithstanding  the  acknowledgment  in  the  agreement  th&t 
it  had  been  received  (Bowen  v.  Bell,  20  Johns.,  338).  It 
was,  in  the  language  of  the  Code,  a  cause  of  action  arising 


YOEK—  JULY,  1865.  471 


Stuart  v.  The  Columbian  Fire  Insurance  Company. 

ont  of  the  contract,  for  the  breach  of  which  in  another  particu- 
lar by  the  defendant,  the  plaintiff  brought  this  action,  and  it 
was  therefore  a  good  counter-claim  which  the  defendant  might 
offset  against  the  amount  of  the  stipulated  damages  liquidated 
and  fixed  by  the  agreement. 

The  offer  was  made  in  a  way  that  might  well,  and  probably 
did,  mislead  the  Court.  It  should  have  been  an  offer  to  show 
that  one  thousand  dollars  of  the  consideration  money  had  not 
been  paid,  which  the  defendant  claimed  to  have  deducted  from. 
the  two  thousand  dollars  stipulated  damages,  and  had  it  been 
thus  intelligibly  submitted,  the  Judge  would,  no  doubt,  have  re- 
ceived the  evidence.  If  that  had  been  done,  and  the  Judge's  at- 
tention called  to  the  averment  in  the  defendant's  answer,  he 
would  have  seen  that  the  defendant  was  entitled,  if  he  proved 
the  fact,  to  have  the  one  thousand  dollars  allowed  him  in  this 
action. 

Upon  all  the  other  questions  the  ruling  of  the  Judge  was 
correct,  but  unless  the  plaintiff  agrees  to  reduce  the  recovery 
by  remitting  the  one  thousand  dollars,  there  must  be  a  new 
trial. 

Ordered  accordingly. 


JOSEPH  STUART  and  JAMES  STUART  v.  THE  COLUMBIAN  FIRE 
INSURANCE  COMPANY. 

A  clause  in  an  agreement  is  to  be  construed  most  strictly  against  the  party  for 
whose  benefit  it  is  inserted. 

Hence,  when  an  open  policy  contained  a  clause  limiting  the  insurer's 
liability  to  the  deficiency  arising  on  the  payment  of  any  other  policy  of 
prior  date, — Held,  that  the  limitation  did  not  apply  to  poods  in  another 
policy,  intermediate  the  date  of  the  defendant's  policy  and  their  inscription 
thereon. 

APPEAL  by  the  defendants  from  a  judgment  entered  on  the 
report  of  a  referee. 

The  action  was  brought  upon  an  open  policy  of  insurance  to 
recover  the  sum  of  five  thousand  and  forty  dollars  for  the  loss 


472  COURT  OF  COMMON  PLEAS. 

Stuart  v.  The  Columbian  Fire  Insurance  Company. 

of  twenty-one  bales  of  cotton,  consigned  at  Louisville,  Kj.,  by 
Garvin,  Bell  &  Co.,  to  the  plaintiffs  at  New  York. 

It  appeared  upon  the  trial  before  the  referee,  that  the  plain- 
tiffs, for  some  time  previous  to  October  28,  1862,  had  made 
loans  and  advances  to  Garvin,  Bell  &  Co.,  of  Louisville,  Ken- 
tucky ;  and  on  that  day,  and  on  November  3,  1862,  Garvin, 
Bell  &  Co.  owed  plaintiffs  on  account  with  them,  fourteen 
thousand  five  hundred  dollars,  not  counting  interest.  On  Oc- 
tober 28,  1862,  William  Garvin,  of  Garvin,  Bell  &  Co.,  wrote 
to  plaintiffs  a  letter  of  that  date,  informing  them  that  he  had 
shipped  to  plaintiffs  twenty-one  bales  of  cotton  to  be  sold  by 
them,  the  proceeds  to  be-applied  to  the  credit  of  Garvin,  Bell 
&  Co.,  in  account  with  them,  the  plaintiffs. 

The  plaintiffs  had  previously  effected  an  insurance  with  the 
defendants  on  the  ship  Dreadnought,  at  and  from  Liverpool  to 
New  York,  on  an  open  marine  policy  to  cover  war  risk  only, 
with  the  various  clauses  usual  in  American  policies  of  marine 
insurance.  The  policy  was  dated  October  18,  1862,  and  this 
policy  being  in  full  force,  plaintiffs,  on  November  3,  1862, 
applied  to  defendants  to  insure  the  twenty-one  bales  of  cotton, 
on  itsvway  to  them  from  Louisville  to  New  York,  and  for 
which  they  had  received  bills  of  feding. 

The  defendants  accepted  the  application,  and  thereupon 
wrote  on  the  second  page  of  said  open  marine  policy  on  the 
ship  Dreadnought^  the  following  memorandum  : 

« O        November  3d,  1862.  12,445. 

"  In  consideration  of  a  premium,  sixty-three  dollars,  it  is 
"  hereby  agreed  that  this  policy  shall  cover  five  thousand  and 
"  forty  dollars  on  twenty-one  bales  of  S.  &  Co.'s  cotton,  at  and 
"  from  Columbus  to  Cairo  per  steamer  Clara  Belly  and  thence 
"  by  R.  R.  to  New  York,  on  the  same  conditions  as  per  within 
"  policy  and  val.  a  $240  per  bale.  $5,040  a  l£  p.  c.  $63 ;" 
and  also  indorsed  upon  the  back  of  the  policy  : 

"  Nov.  2,  '62.-  St'r  Clara  Bell,  12,445.— Columbus  to  Cairo 
•"  to  New  York,  $5,040  a  1±  per  cent,  $63." 

The  cotton  was  shipped  on  October  24th,  at  Columbus  for 
Cairo;  left  Cairo  by  Illinois  Central  R.  R.  for  New  York  on 
October  29th  ;  and  was  burnt  on  the  next  day  on  the  railroad, 
proving  a  total  loss. 


NEW   YORK— FEBRUARY,  1865.  473 

Stuart  v.  The  Columbian  Fire  Insurance  Company. 

The  firm  of  Garvin,  Bell  &  Co.,  on  the  29th.  of  October,  at 
Louisville,  Ky.,  applied  to  the  Franklin  Insurance  Company 
«  of  that  city  for  insurance  on  the  cotton,  and  the  Company 
agreed  to  take  the  risk  conditionally,  that  if  the  cotton  was 
covered  by  the  open  policy  of  the  plaintiifs,  in  New  York  (as 
Garvin,  Bell  &  Co.  informed  the  Company  it  probably  was), 
the  agreement  was  not  to  be  binding  on  the  Franklin  Insur- 
ance Company.  Subsequently,  on  the  3d  day  of  November, 
Garvin,  Bell  &  Co.,  notified  the  Franklin  Insurance  Company 
that  the  cotton  was  covered  by  the  policy  in  suit,  and  the 
Company  thereupon  erased  the  entry  made  in  their  cargo  reg- 
ister. No  policy  was  ever  issued  to  Garvin,  Bell  &  Co. 

The  defendants  rested  their  defence  on  the  following  clause 
in  the  original  policy  of  insurance,  dated  October  18,  which 
clause  is  as  follows :  "  Provided,  always,  and  it  is  hereby 
further  agreed  as  follows,  that  if  the  said  assured  shall  have 
made  any  other  assurance  on  the  premises  aforesaid,  prior  in 
date  to  this  policy,  then  the  said  Columbian  Insurance  Company 
shall  be  answerable  only  for  so  much  as  the  amount  of  such 
prior  insurance  may  be  deficient  toward  fully  covering  the 
^premises  hereby  assured." 

Defendants  claimed,  that  although  the  policy  of  defendants 
did  cover  this  cotton,  yet  that  the  cotton  had  been  previously 
insured  by  the  Franklin  Insurance  Company,  that  all  the  de- 
fendants .would  be  called  on  to  pay  was  a  contribution,  or  so 
much  as  the  amount  of  such  prior  insurance  might  be  deficient, 
and  that  as  the  prior  insurance  fully  covered  the  declared 
value  of  the  cotton,  there  was  no  deficiency. 

The  referee  so  found,  and  the  plaintiffs  appealed  to  the  Gen- 
eral Term. 

Richard  O* Gorman,  for  appellant. 
A.  C.  Morris,  for  respondent. 

BY  THE  COURT.— CARDOZO,  J. — The  insurance  effected  by 
Garvin,  Bell  &  Co.,  in  Louisville,  was  not  prior  to  the  date  of 
the  policy  in  suit ;  and  the  clause  in  question  in  terms,  cer- 
tainly, only  refers  to  insurance  "  prior  in  date  to  this  policy." 

The  defence  is  technical,  and  should  not  be  favored,  but 
should  be  strictly  construed  :  the  clause  respecting  prior  insiir- 


474:  COURT  OF  COMMON  PLEAS. 

Rittenhouse  v.  The  Independent  Line  of  Telegraph. 

ance  being  inserted  for  the  benefit  of  the  defendants,  who,  had 
they  intended  to  make  this  policy,  so.  far  as  the  cotton  in  ques- 
tion was  concerned,  bear  date  November  3,  instead  of,  as  the 
language  implies,  its  actual  date,  October  18th,  could  have 
rendered  the  matter  clear  by  proper  stipulations.  The  insur- 
ance effected  by  Messrs.  Garvin,  Bell  &  Co.,  in  the  Franklin 
Insurance  Company  was  on  the  29th  of  October,  1862,  while 
the  policy  in  part  bears  date,  eleven  days  earlier,  on  the  18th 
of  October,  1862.  The  memorandum  made  on  the  3d  of  Nov- 
ember, incorporated  nothing  into  the  policy,  except  the  addi- 
tional risk  which  the  assurers  assumed.  They  did  not  make  a 
new  policy,  but  agreed  that  the  then  existing  policy,  dated 
October  18th,  1861,  should  cover  the  cotton  in  question. 

It  was  simply  an  agreement  made  on  the  3d  of  November, 
1862,  that  a  contract  dated  October  18,  1862,  should  be  ex- 
tended as  to  its  subject  matter,  so  as  to  apply  to  and  cover 
other  property  than  that  which  had  originally  been  mentioned 
in  it. 

The  policy  held  by  the  plaintiffs,  not  being  prior  to  the  in- 
surance made  in  Louisville,  covered  the  interest  of  the  Messrs. 
Stuart,  without  it  being  specified,  and  whether  that  interest^ 
was  as  owners  or  as  consignees. 

I  think  the  referee  erred  in  dismissing  the  complaint,  and 
that  the  judgment  should  be  reversed  and  a  new  trial  ordered; 
costs  to  abide  the  event. 


CHAKLES  E.  EITTENHOUSE  and  others  v.  THE  INDEPENDENT 
LINE  OF  TELEGRAPH. 

The  defendants,  a  telegraph  company,  received  from  the  plaintiffs,  at  Washing- 
ton, D.  C.,  a  dispatch  to  be  transmitted  over  its  line  to  the  plaintiffs  agents  in 
New  York,  directing  them  to  sell  for  plaintiffs  their  "  Southern  Michigan  be- 
fore board  :  buy  five  Hudson  at  board."  The  dispatch,  as  received  by  the  plain- 
tiffs' agents,  directed  them  to  sell  their  Southern  Michigan  stock  before  board, 
and  "  buy  five  hundred  at  board."  The  agents  sold  the  plaintiffs'  Southern 


NEW   YORK— JULY,  1865.  475 

Rittenhouse  v.  The  Independent  Line  of  Telegraph. 

Michigan  stock  before  the  board,  and,  at  the  beard,  purchased  fire  hundred 
shares  of  the  same  stock.  The  plaintiffs  on  being  apprised  by  telegraph 
the  same  day  of  the  transaction,  sent  another  dispatch,  correcting  the  error, 
and  repeating  the  first  order.  This  dispatch  being  received  after  the  ad- 
journment of  the  board  of  brokers,  the  agents  sold  on  the  street  the  five 
hundred  shares  of  Michigan  Southern  R.  R.  stock,  purchased  by  them,  at  a 
loss  of  four  hundred  and  seventy-five  dollars,  and  purchased,  at  the  lowest 
£rice,  five  hundred  shares  of  the  Hudson  River  R.  R.  stock,  which  was,  for 
the  whole  number  of  shares  purchased,  one  thousand  three  hundred  and 
seventy-fiv^  dollars  more  than  the  same  could  have  been  bought  for  at  the 
board  of  brokers  that  day. — Held,  that  the  plaintiffs  were  entitled  to  re- 
cover of  the  defendants  the  difference  between  the  price  at  which  the  five 
hundred  shares  of  the  Hudson  River  R.  R.  stock  could  have  been  bought  at 
the  board  of  brokers,  and  the  lowest  price  for  which  the  same  could  have 
been,  and  was,  bought  after  the  adjournment  of  the  board,  on  the  receipt 
of  the  corrected  despatch. 

Held,  also,  that  as  the  language  used  hi  the  dispatch,  however  indefinite 
to  others,  was  intelligible  to  the  agents,  they  were  not  charged 
with  the  duty  of  making  further  inquiry  before  acting  upon  it 

Held,  also,  that  defendant  having  placed  it  beyond  the  power  of  the  plain  tiffs' 
agents  to  make  the  purchase  of  the  five  hundred  shares  of  the  Hudson  River 
R  R  stock  at  the  board  of  brokers,  it  could  not  avail  itself  of  the  fact  that  the  pur- 
chase was  made  on  the  street  after  the  adjournment  of  the  board,  it  not  ap- 
pearing that  it  was  injured  by  the  circumstance. 

Held,  further,  that  the  plaintiffs  were  not  entitled  to  recover  the  difference  of 
four  hundred  and  seventy-five  dollars  on  the  sale  of  the  five  hundred  shares 
of  Michigan  Southern  R.  R.  stock.  In  legal  effect,  it  was  purchased  on  the 
defendant's  account,  and  could  not  be  sold  without  notice  to  the  defendant. 

APPEAL  by  the  defendants  from  a  judgment  at  Special  Term. 

The  case  was  tried  before  DALY,  J.,  without  a  jury,  by  con- 
sent of  parties. 

The  action  was  brought  to  recover  of  the  defendant,  a  corpora- 
tion having  and  controlling  a  line  of  telegraph  between  the  city 
of  New  York  and  "Washington,  D.  C.,  damages  for  a  mistake  in 
a  message  transmitted  over  the  defendant's  line,  by  the  plaintiffi, 
at  Washington,  to  their  brokers,  Drexel,  Winthrop  &  Co.,  at 
New  York. 

It  was  shown  on  the  trial,  that  on  the  14th  day  of  October, 
1863,  the  plaintiffs  delivered  to  the  defendant  at  its  office  in 
Washington,  the  following  message,  directed  to  Drexel,  Win- 
throp  &  Co : 

a  If  we  have  any  old  Southern  on  hand,  sell  same  before  board 
a  — buy  five  Hudson  at  board — quote  price." 

"  RITTENHOUSE,  FANT  &  Co." 


476  COURT    OF   COMMON   PLEAS. 

Rittenhouse  v.  The  Independent  Line  of  Telegraph. 

The  message  received  by  Drexel,  Winthrop  &  Cb.,  was  as  fol- 
lows: 

"  If  we  have  any  old  Southern  on  hand,  sell  same  before  board 
"  — buy  five  hundred  before  board — quote  price. 

"  RITTENHOUSE,  FANT  &  Co." 

By  an  understanding  between  the  plaintiffs  and  their  brokers, 
the  words  "old  Southern"  in  the  message  meant  Michigan 
Southern  Railroad  stock.  The  words  "  five  Hudson  "  meant  five 
hundred  shares  of  Hudson  River  Railroad  stock  ;  and  the  word 
"  board "  meant  the  stockbrokers'  board  in  New  York.  The 
agents,  without  suspicion  of  the  error  in  the  telegram,  sold  all 
the  Michigan  Southern  of  the  plaintiffs'  before  the  morning 
board,  and  purchased  five  hundred  shares  of  the  Michigan 
Southern  stock  at  the  board  for  the  plaintiffs,  at  forty-four 
thousand  three  hundred  and  thirty-seven  dollars  and  fifty  cents, 
that  being  the  lowest  price  for  which  they  could  be  bought. 
Immediately  after  the  purchase,  the  brokers  notified  the  plain- 
tiff by  telegraph,  of  the  purchase,  and  price.  The  same  day. 
the  plaintiffs  directed  their  brokers,  by  telegraph,  to  cancel  the 
erroneous  sale  and  purchase  of  the  Michigan  Southern  stock, 
and  to  purchase  the  five  hundred  shares  of  Hudson  River  stock. 
The  message  was  received  late  in  the  day,  and  after  the  board 
adjourned.  The  brokers  sold  on  the  street,  the  same  afternoon, 
the  five  hundred  shares  of  Michigan  Southern,  for  the  best  price 
they  could  obtain,  forty-three  thousand  eight  hundred  and  sixty- two 
dollars  and  fifty  cents,  being  four  hundred  and  seventy  dollars 
less  than  they  had  to  pay  for  them  at  the  board.  They  also 
purchased  on  the  street,  five  hundred  shares  of  the  Hudson 
River  Railroad  stock,  as  directed  by  the  plaintiffs,  .at  one  hun- 
dred and  thirty-nine  dollars  and  fifty  cents  per  share,  that  being 
the  lowest  price  at  which  they  could  be  obtained.  The  lowest 
price  at  which  the  same  stock  was  sold  at  the  morning  board 
on  that  day  was  one  hundred  and  thirty-six  dollars  per  share, 
and  the  average  price  was  one  hundred  and  thirty-six  dollars 
and  seventy-five  cents;  making  a  difference  between  the 
lowest  price  at  the  morning  board,  and  the  price  paid  by  the 
plaintiffs'  brokers,  on  the  whole  five  hundred  shares,  of  one 
thousand  seven  hundred  and  fifty  dollars,  and  a  difference  be- 


NEW  YORK— JULY,  1861.  477 

Rittenhouse  v.  The  Independent  Line  of  Telegraph. 

tween  the  average  price  at  the  morning  board,  and  the  price 
paid,  of  one  thousand  three  hundred  and  seventy-five  dollars. 

The  broker  testified  that  had  the  correct  despatch  been  re- 
ceived bj  him,  he  would  have  purchased  the  five  hundred  shares 
of  Hudson  River  stock,  for  the  plaintiffs,  at  the  first  board  in  the 
morning. 

The  testimony  on  behalf  of  the  plaintiffs  being  closed,  the  de- 
fendant's counsel  moved  to  dismiss  the  complaint,  on  the 
following  grounds : 

1.  That  the  message  as  delivered  by  the  defendant  to  Drexel, 
Winthrop  &  Co.,  was  so  indefinite  and  uncertain  in  its  directions 
to  buy,  as  to  put  them  upon  inquiry  as  to  its  meaning  •  which 
was  overruled  by  the  Court. 

2.  That  the  words  five  hundred  in  the  connection  in  which 
they  were  used  in  the  message  as  delivered,  conveyed  no  au- 
thority to  Drexel,  Winthrop  &  Co.  to  purchase  Michigan  South- 
ern Railroad  stock ;  which  was  overruled  by  the  Court,  the  Court, 
deciding  that  the  message  as  delivered,  authorized  Drexel,  Win- 
throp &  Co.  to  purchase  five  hundred  shares  of  Michigan  South- 
ern Railroad  stock. 

3.  That  the  purchase  of  five  hundred  shares  of  Michigan 
Southern  Railroad  stock,  by  Drexel,  Winthrop  &  Co.,  was  not  a 
legitimate  consequence  or  result  of  the  defendant's  error  in  the 
delivery  of  the  message ;  which  was  overruled  by  the  Court. 

4.  That  on  discovery  of  the  error  in  the  message  as  delivered 
after  the  purchase  of  Michigan  Southern  Railroad  stock,  it  was 
the  duty  of  the  plaintiffs,  or  their  agents,  Drexel,  Winthrop  & 
Co.,  to  notify  defendant  of  the  purchase,  and  give  the  defendant 
an  opportunity  to  adopt  it,  and  assume  the  consequences  thereof. 
The  Court  sustained  this  point,  and  held  and  decided  that  as 
no  such  oportunity  was  given  the  defendant,  but  on  the  contrary, 
the  plaintiffs  sold  the  said  stock  without 'consulting  the  defend- 
ant, the  plaintiffs  could  not  recover  any  loss  incurred  by  such 
purchase  and  sale.     To  this  ruling,  the  plaintiffs'  counsel  ex- 
cepted. 

5.  That  the  purchase  of  the  Hudson  River  Railroad  stock  was 
a  voluntary  purchase,  made  with  full  knowledge  on  the  part  of 
the  plaintiffs  of  the  error  in  the  delivery  of  the  message,  and  of 
the  market  price  of  said  stock,  and  that  the  damages  alleged 
and  clainled  by  the  plaintiffs  to  have  resulted  therefrom,  were 


478  COURT  OF  COMMON  PLEAS. 

* 

Rittenhouse  v.  The  Independent   Line    of    Telegraph. 

•  * 

speculative  merely,  and  did  not  result  from  the  defendant's  er- 
ror. The  Court  overruled  this  point,  and  the  defendant's  counsel 
excepted. 

G.  That  the  purchase  of  Hudson  Eiver  Railroad  stock  made 
by  Drexel,  "Winthrop  &  Co.  was  not  made  in  accordance  with 
the  directions  of  the  plaintiffs,  inasmuch  as  such  purchase  was 
not  made  at  the  board,  and  the  defendants  could  not  be  liable 
thereon  ;  which  was  overruled  by  the  Court,  and  the  defendant's 
counsel  excepted. 

7.  That  the  negligence  and  carelessness  of  the  plaintiffs  and 
their  agents,  in  misconstruing  the  telegram,  contributed  to  the 
injury  alleged,  and  the  plaintiffs  could  not  recover;  which  was 
overruled  by  the  Court,  anti  the  defendant's  counsel  excepted. 

8.  That  after  the  discovery  of  error,  and  before  purchasing 
the  Hudson  River  Railroad  stock,  it  was  the  duty  of  the  plain- 
tiffs to  notify  the  defendant,  and  having  omitted  to  do  so,  the 
plaintiffs  could  not  recover  for  the  loss  on  the  purchase ;  which  was 
overruled  by  the  Court,  and  the  defendant's  counsel  excepted. 

The  Court,  thereupon,  decided  that  the  plaintiffs  were  en- 
titled to  recover  of  the  defendant  the  sum  of  one  thousand 
three  hundred  and  seventy-five  dollars,  with  interest  thereon 
from  the  14th  day  of  October,  1863,  amounting  in  all  to  the  sum 
of  one  thousand  four  hundred  and  twenty-five  dollars  and  eighty- 
nine  cents,  and  entered  judgment  accordingly. 

From  the  judgment  entered  on  this  decision,  the  defendant  ap- 
pealed  to  the  General  Term. 

Edward  Fitch,  for  appellant. 

I.  The  defendant  is  not  a  common  carrier.      It  does  not  un- 
dertake to  carry  either  persons  or  merchandise.      It  is  simply  a 
contractor  undertaking  to  perform  labor  and  services,  and  is  »• 
liable  only  for  damages  for  non-performance  of  its  contract. 

II.  The  damages  claimed  are  not  the  immediate,  consequential 
and  necessary  results  of  the  mistake  of  the  defendant,  but  are 
remote  consequences  which  could  not  be  produced  by  the  action 
of  the  plaintiffs  through  their  agents  ( Wibert  v.  JOT.  Y.  and  E'ie 
R.  R.  Co.,  19  Barb.,  36). 

III.  The  first  message  was  so  indefinite  and  uncertain  in  its 
directions  to  purchase,  that  the  brokers  should  have  been  put  up- 


NEW  YORK— JULY,  1865.  479 

Rittenhouse  v.  The  Independent  Line  of  Telegraph. 

on  their  guard,  and  were  charged   with   the  duty  of  making 
further  inquiry  before  acting  under  it. 

IV.  The  plaintiff's  first  message  directed  the  purchase  of 
"  five  Hudson  at  board."  Their  second  message  repeated  the 
first  in  substance,  and  directed  their  agents  to  "  execute  bal- 
ance of  order."  The  agents  were  therefore  clearly  and  em- 
phatically commanded  to  purchase  the  Hudson  River  Railroad 
stock  at  the  loard.  They  purchased  it  on  the  street  after  the 
adjournment  of  the  board,  in  violation  of  the  directions,  and 
the  defendant  cannot  be  charged  with  the  consequences.  If 
they  had  followed  instructions,  and  made  the  purchase  at  the 
next  morning  board,  it  does  not  appear  that  any  loss  would 
have  followed.  This  point  is  fatal  to  that  branch  of  the  plain- 
tiffs' claim  upon  which  a  recovery  was  had,  and  the  complaint 
should  have  been  dismissed. 

E.  Sprout,  for  respondents. 

BY  THE  COURT. — BRADY,  J. — The  dispatch  written  by  the 
plaintiffs  was  an  order  to  their  brokers  here  to  sell  their  Mich- 
igan Southern  Stock  and  to  buy  five  hundred  shares  of 
Hudson  River  Railroad  stock.  The  language  employed,  how- 
ever indefinite  to  others,  was  intelligible  fo  the  brokers.  The 
dispatch  written  was  not  sent,  and  the  effect  of  the  error  was 
to  make  it  an  order  to  sell  the  shares  of  Southern,  and  to  buy 
five  hundred  more.  As  to  this  the  erroneous  dispatch  is 
neither  uncertain  nor  indefinite.  No  otker  interpretation 
can  be  fairly  given  to  it.  The  evidence  established  the  fact 
that  the  use  of  words  "  five  Hudson,"  by  an  understanding 
between  plaintiffs  and  their  brokers,  meant  five  hundred  shares 
of  the  Hudson  River  Railroad  Stock,  and  also,  that  the  erro- 
neous dispatch  was  understood  to  be  an  order  to  purchase  five 
hundred  shares  of  the  Michigan  Southern,  and  which,  as  be- 
fore suggested,  was  the  only  conclusion  to  be  drawn  from  the 
language  employed.  These  views  dispose  of  the  exceptions  to 
the  sufficiency  of  the  evidence  to  warrant  the  findings  of  fact 
upon  which  the  judgment  is  based.  The  plaintiffs,  on  learn- 
ing that  an  error  had  been  committed,  again  directed  the  pur- 
chase of  Hudson  River  Railroad  Stock,  and  were  entitled  to 
the  advantages  of  such  purchase  at  the  rates  prevailing  on  the 
day  of  the  date  of  the  dispatch,  without  reference  to  the  ses- 


4SO  COURT  OF  COMMON  PLEAS. 

Rittenhouse  v.  The  Independent  Line  of  Telegraph. 

sion  of  the  board,  when  the  dispatch  was  received.  The  omis- 
sion to  buy  at  the  board  on  that  day  arose  from  the  defendants' 
misconduct  in  sending  the  dispatch,  and  it  became  the  duty  of 
the  broker  under  his  instructions  to  make  the  purchase  at 
once.  The  defendants  having  placed  it  beyond  the  power  of 
the  plaintiffs'  brokers  to  make  the  purchase  in  the  particulai 
manner  indicated,  they  cannot  avail  themselves  of  the  fact  that 
the  purchase  was  not  made  in  that  mode.  They  cannot  take  ad- 
vantage of  their  own  wrong,  particularly  when  it  nowhere 
appears  that  they  were  injured  by  the  circumstance.  The 
prices  paid  were  the  lowest  at  which  the  stock  could  be  ob- 
tained, and  the  defendants  had  the  benefit  of  that  fact.  The 
purchase  was  voluntary,  it  is  true,  but  it  was  an  act  which  the 
plaintiffs  had  the  right  to  perform,  growing  out  of  their  rela- 
tions with  the  defendants,  established  by  the  contract  on  the 
part  of  the  latter  to  transmit  the  dispatch  faithfully.  These 
views  are  responsive  to  the  exceptions  taken  to  the  legal  con- 
clusions arrived  at  upon  the  trial,  and  leaves  but  one  to  be 
considered. 

The  plaintiff's  claim  for  a  difference  of  $475  on  the  sale  of 
the  five  hundred  shares  of  Michigan  Southern,  was  disallowed, 
upon  the  ground  that*the  stock  was,  in  legal  effect,  purchased 
on  defendants'  account,  and  could  not  be  sold  without  some 
notice  to  them.  I  think  this  ruling  was  a  proper  one,  the  re- 
lations of  the  parties  being  considered.  If  the  plaintiffs 
intended  to  disavow  the  purchase,  the  defendants  should  have 
been  notified  thereof,  and  in  that  way  enabled  to  keep  the 
stock  or  not,  as  they  might  deem  most  advisable.  By  exercis- 
ing the  act  of  ownership  in  the  sale  made,  they  have  adopted 
the  purchase,  and  the  sale  must  therefore  be  regarded  as  on 
their  account.  But  if  this  view  be  incorrect,  there  can  be  no 
doubt  that  the  defendants  were  entitled  to  notice  of  the  mis- 
take made  by  them,  before  any  sale  of  the  stock  purchased,  in 
pursuance  of  their  erroneous  dispatch,  was  made.  For  these 
reasons  the  judgment  must  be  affirmed. 


NEW  YORK— JULY,  1865.  481 


Wallace  v.  Lent. 


JAMES  WALLACE  v.  WHITMAN  S.  LENT. 

JTo  contract  is  implied  that  a  house  is  fit.  for  habitation,  as  the  tenant 
can  examine  it,  and  the  landlord  may  know  no  more  respecting  it 
than  it  is  in  the  power  of  the  tenant  to  discover  for  himself.  But  where 
the  landlord  knows  that  a  cause  exists  which  renders  the  house  unfit  for 
occupation,  it  is  a  wrongful  act  on  his  part  to  rent  it  without  notice  of  its 
condition,  and  where  the  tenant,  after  discovering  the  condition  of  the 
house,  quits  it,  the  landlord  should  not  be  permitted  to  take  advantage  of 
his  own  wrong  and  enforce  the  contract  for  the  payment  of  the  rent. 

A  landlord  rented  a  dwelling  house  to  a  tenant  without  disclosing  the  fact,  of 
which  he  was  aware,  that  there  was  a  deleterious  stench  in  the  house,  pro- 
ceeding from  some  unknown  cause,  which  rendered  it  unfit  for  habitation. 
The  tenant,  ignorant  of  the  circumstances,  went  into  possession  with  his 
family,  and  in  a  very  short  time  all  the  inmates  of  the  house  experienced  the 
injurious  effects  of  the  stench,  producing  vomiting,  &c.  The  tenant  at- 
tempted to  abate  the  nuisance,  but  without  effect ;  and  after  a  month's  occu- 
pation, on  the  advice  of  his  family  physician,  quit  the  premises, — Held,  that 
the  concealment  was  a  fraud  on  the  part  of  the  landlord,  and  that  the 
tenant  was  justified  in  leaving. 

Even  where  fraud  has  been  practiced,  a  tenant,  if  he  continues  to  occupy  the 
premises,  must  pay  rent  therefor,  but  after  the  discovery  of  the  fraud,  he  is 
entitled  to  a  reasonable  time  within  which  to  repudiate  the  contract. 

Thus  where  the  tenant  continued  in  occupation  about  a  month,  but  did  so  un- 
der the  assurance  of  the  landlord  that  the  cause  of  the  complaint  should  be 
removed, — Held,  that  his  continuance  during  that  period  was  not  of  such  a 
nature  as  to  amount  to  an  adoption  of  the  contract,  or  to  make  the  tenant 
liable  for  the  payment  of  the  rent  for  the  period  while  in  actual  occupation. 

APPEAL  by  the  defendant  from  a  judgment  of  the  Sixth 
District  Court. 

The  action  was  brought  to  recover  for  two  months'  rent  of 
certain  premises  in  the  City  of  New  York,  due  on  the  first  days 
of  May,  and  June,  1863.  The  defence  was  that  at  the  time  of 
the  hiring  of  the  premises  the  plaintiff  fraudulently  concealed 
from  the  defendant  the  existence  of  a  deleterious  stench  in  the 
house,  proceeding  from  some  unknown  cause,  and  rendering  it 
dangerous  to  health  to  remain  in  the  house.  It  was  shown  on 
31 


482  COURT  OF  COMMON  PLEAS. 

Wallace  v.  Lent. 

the  trial  that  this  nuisance  was  well  known  to  the  plaintiff's 
agent,  who  rented  the  house ;  that  the  previous  tenant  had 
complained  of  it,  and  that  the  plaintiff  had,  in  consequence, 
made  application  to  the  Health  Warden.  The  defendant,  after 
occupying  the  premises  a,  part  of  two  months,  abandoned  them, 
on  the  advice  of  his  family  physician  that  the  health  of  himself 
and  family  was  thereby  jeopardized. 

The  Court  below  rendered  judgment  for  the  rent  of  the  two 
months  during  which  the  defendant  occupied,  and  the  latter 
appealed  to  the  Court  of  Common  Pleas. 

Roscoe  H.   Channing,  for  appellant. 
Flanagan  &  Cummings,  for  respondent. 

BY  THE  COUKT. — DALY,  F.  J. — This  was  the  case  of  a  land- 
lord's agent  renting  a  dwelling  house  in  the  City  of  New  York 
to  a  tenant  without  disclosing  the  fact,  of  which  he  was  aware, 
that  there  was  a  deleterious  stench  in  the  house  proceeding 
from  some  unknown  cause,  which  rendered  it  unfit  for  habita- 
tion. The  tenant,  ignorant  of  the  circumstances,  went  into 
possession  with  his  family,  and  in  a  very  short  time  all  the  in- 
mates of  the  house  experienced  the  injurious  effects  of  the 
stench.  It  was  not  merely  offensive  to  the  senses,  but  it  .pro- 
duced sickness  at  the  stomach,  vomiting,  loss  of  appetite,  &c. 
The  tenant  did  everything  in  his  power  to  abate  the  nuisance, 
but  without  effect,  and  after  continuing  in  the  house  for  about 
a  month,  and  after  several  consultations  with  the  family  phy- 
sician, who  was  of  opinion  that  the  family  could  not  live  in  the 
house  without  all  becoming  sick,  he  left  it.  The  plaintiff  has 
recovered  in  the  Court  below  for  two  months'  rent,  and  I 
think  erroneously. 

It  was  held  in  Sutton  v.  Temple,  12  Mees.  &  W.,  52  ;  and 
in  Hart  v.  Winslow,  id.,  68;  overruling  the  previous  cases  of 
Collins  v.  Barrow,  1  M.  &  Rob.,  112 ;  and  Salsbury  v.  Mar- 
shall, 5  C.  &  P.,  65  ;  that  there  is  no  implied  condition  in  an 
agreement  for  the  hiring  of  a  house  that  it  is  reasonably  fit  for 
habitation ;  and  it  was  held  in  Westlake  v.'DeGraw,  25  Wend., 
669,  that  it  was  no  answer  to  an  action  for  the  rent  that  the 
tenant  left  the  premises  in  consequence  of  a  noxious,  unhealthy 
smell,  arising  from  dead  rats  under  the  steps  of  the  house,  in- 


NEW  YORK— JULY,  1865.  4S3 


Wallace  v.  Lent. 


asmuch  as  by  the  exercise  of  ordinary  vigilance  he  could  have 
ascertained,  as  the  tenant  who  succeeded  him  did,  the  cause  of 
the  smell,  and  might  have  removed  it. 

The  present  case,  however,  is  distinguished  from  either  of 
the  preceding  ones  in  several  particulars.  The  landlord's  agent 
admitted  that  he  knew  before  he  rented  the  premises  to  the 
defendant,  that  there  was  an  offensive  stench  in  the  house,  the 
cause  of  which  had  not  been  discovered,  but  which  he  supposed 
arose  from  a  sewer  that  was  under  the  house.  It  was,  in  the 
langua.ge  of  the  physician,  a  dense  bad  smell,  as  if  it  came  from 
a  vault,  and  that  it  was  highly  injurious  to  health,  appears  in 
the  fact  that  when  the  inmates  of  the  house  arose  every 
morning,  they  had  sickness  at  the  stomach  accompanied  with 
a  foul  tongue  and  loss  of  appetite,  -and  some  of  them  were  taken 
with  vomiting.  The  previous  tenant  had  left  the  premises  be- 
fore the  expiration  of  his  term,  and  the  agent,  after  several  at- 
tempts to  evade  the  inquiry,  admitted  that  this  tenant  may 
have  said  to  him  that  he  left  the  house  in  consequence  of  the 
smell.  He  also  admitted  that  the  complaints  had  been  previously 
made  respecting  the  stench,  and  that  in  consequence  of  them 
he  had  made  an  application  to  the  Health  Warden. 

To  let  the  house  to  the  defendant,  concealing  so  material  a  mat- 
ter as  this,  was  a  fraud.  It  was  something  which  the  defendant 
could  not  have  anticipated,  and  of  which  he  had  a  right  to  be 
advised,  as  it  affected  the  beneficial  enjoyment  of  the  premises. 
The  agent  knew  that  the  house  was  not  fit  for  habitation,  but 
the  tenant  did  not,  nor  could  he  have  discovered  the  cause 
which  made  it  so  by  any  ordinary  examination  of  the  premises. 
No  contract  is  implied  that  a  house  is  fit  for  habitation,  for  the 
reason  that  the  tenant  may  examine  it,  and  the  landlord  may 
know  no  more  respecting  it  than  it  is  in  the  power  of  the 
tenant  to  discover  for  himself.  But  where  the  landlord  knows 
that  a  cause  exists  which  renders  the  house  unfit  for  habitation, 
it  is  a  wrongful  act  on  his  part  to  rent  it  without  notice  of  its 
condition.  It  is  procuring  an  innocent  tenant  to  enter  into  a 
contract  for  the  payment  of  rent  during  a  specified  period  for 
the  occupation  of  a  house  which  the  landlord  knows  that,  the 
tenant  will  either  have  to  abandon,  or  if  he  remains  in  it  mnst 
do  so  to  the  detriment  of  the  health  of  himself  and  his  family. 


4S±  COURT  OF  COMMOK  PLEAS. 

"Wallace  v.  Lent. 

If  the  defendant  had  been  advised  of  the  existence  of 
this  stench,  it  may  fairly  be  presumed  that  he  would 
either  hare  declined  to  rent  the  house,  or  that  he  would 
have  made  some  conditions  entitling  him  to  leave  if  he  found 
it  unendurable,  and  if  after  discovering  and  experiencing  its 
injurious  effects,  he  is  compelled  to  quit  the  house,  it 
would  be  permitting  the  landlord  to  take  advantage  of 
his  own  wrong,  to  allow  him  to  enforce  the  contract  for  the  pay- 
ment of  the  rent.  In  Button  v.  Temple,  the  Court  adverted  to 
the  circumstance  that  it  was  not  suggested  that  the  plaintiff 
had  the  least  knowledge  when  she  let  the  premises  of  the  exis- 
tence of  the  poisonous  substance  upon  the  land,  which  proved 
injurious  to  the  plaintiff's  cattle;  and  in  Westlake  v.  DeOraw^ 
the  verdict  of  the  jury  was  regarded  as  having  negatived  any 
presumption  of  fraud  ;  but  in  the  present  case  it  was  abun- 
dantly shown,  even  by  the  agent's  admission,  that  he  knew  of 
the  existence  of  the  stench,  and  it  was  by  the  unconscientious 
withholding  of  the  material  fact,  that  the  defendant  was  en- 
trapped into  a  contract  to  pay  rent  for  a  house  for  a  year 
which  he  could  not  occupy. 

Even  where  fraud  has  been  practiced,  a  tenant,  if  he  con- 
tinues to  occupy  the  house,  must  pay  rent  for  it,  but  after  the 
discovery  of  the  fraud  he  is  entitled  to  a  reasonable  time  within 
which  to  repudiate  the  contract.  In  this  case,  the  defendant 
continued  in  occupation  about  a  month,  but  he  did  so  under 
the  assurance  of  the  agent  that  the  cause  of  the  complaint 
would  be  removed.  An  attempt  was  made,  but  it  was  not  re- 
moved, and  the  defendant  left  about  the  second  of  June,  by  the 
advice  of  his  physician.  His  continuance  therefore  during  the 
period  was  not  of  such  a  nature  as  to  amount  to  an  adoption 
of  the  contract,  or  to  make  him  liable  for  the  payment  of  rent 
for  the  period  which  he  actually  occupied. 

The  judgment  should  be  reversed. 


NEW   YORK— JULY,  1865.  4S5 


Bloomer  v.  Merrill. 


ELISHA  BLOOMER  v.  WARREN  M.  MERRILL. 

The  statute  of  1860,  ch.  345,  permitting  lessees  to  surrender  buildings  rendered 
untenantable  by  the  elements,  applies  only  where  the  injury  or  destruction     , 
occurs  after  the  lessee's  entry,  and  not  where 'it  exists  at  the  time  of   i 
making  the  lease. 

The  proceedings  before  a  Justice,  who  loses  jurisdiction  by  failing  to  render 
his  decision  within  the  statutory  time,  are  null,  and  constitute  no  bar  to  a 
recovery  on  the  same  cause  of  action  in  a  subsequent  suit. 

A  tenant  informed  his  landlord  that  he  should  leave  his  premises  on  the  1st 
of  January,  and  was  told  that  if  he  did  so,  the  landlord  would  let  the  prem- 
ises on  his  account  and  hold  him  responsible  for  the  rent.  Subsequently, 
the  landlord  sent  a  person  to  occupy  the  house,  and  the  tenant  moved  out 
without  further  remark, — Held,  that  this  did  not  release  the  tenant  from  his 
lease.  / 


APPEAL  by  the  defendant  from  a  judgment  of  the  Marine 
Court. 

The  plaintiff  brought  a  suit  in  the  Marine  Court  to  recover 
a  balance  of  rent  due  from  November  1st,  1863  to  May  1st, 
1861.  It  was  admitted  that  the  plaintiff  leased  the  premises 
in  question  to  the  defendant  for  six  months  from  the  1st  of 
November  at  $35  per  month,  and  that  he,  defendant,  had  paid 
bnt  $90  on  account  of  it.  It  appeared,  however,  that  on  the 
first  of  December,  the  defendant  went  to  the  plaintiff,  and 
told  him  the  place  was  in  such  bad  condition  that  it  was  not  fit 
to  live  in,  and  he  should  move  on  the  first  of  January.  The 
plaintiff  told  him  if  he  did,  he  would  rent  the  premises  on 
his  account,  and  would  hold  him  responsible  for  the  rent. 
On  the  28th  of  December,  a  person,  sent  by  the  plaintiff,  came 
to  the  premisoe  and  demanded  possession,  whereupon  the  de- 
fendant moved  out  This  the  defendant  claimed  was  a  surrender 
and  acceptance  by  the  landlord  freeing  him  from  liability  for 
the  rent.  lie  further  claimed  that  the  premises  were  in  an 


486  COURT  OF  COMMON  PLEAS. 

Bloomer  v.  Merrill. 

untenantable  condition,  and  on  the  trial  several  questions  were 
put  to  show  their  state  in  November  and  December,  but  were 
all  overruled. 

It  also  appeared  that  in  January,  the  plaintiff  had  com- 
menced an  action  in  a  District  Court  for  the  rent,  which  was 
submitted  to  the  Justice  of  that  Court  for  decision,  but  that 
110  decision  was  rendered  in  that  action. 

The  Justice  of  the  Marine  Court  directed  a  verdict  for  the 
plaintiff,  and  the  defendant  appealed  to  the  General  Term  of 
the  Marine  Conrt,  and  from  their  affirmance  the  defendant 
appealed  to  this  Court. 

David  McAdam,  for  the  appellant. 
Robert  H.  Corbett,  for  the  respondent. 

BY  THE  COURT. — DALY,  F.  J. — There  was  no  provision  in 
the  agreement,  which  was  in  writing,  that  the  landlord  should 
make  any  repairs,  and  when  that  is  the 'case,  the  tenant  takes 
the  premises  for  better  or  for  worse,  and  must  pay  the  rent  for 
the  term  demised,  the  landlord  being  under  no  obligation  to 
repair  them  (Mumford  v.  JZrown,  6  Cow.  R.,  475).  The  statute  of 
1860  (Laws  of  1860,  p.  592),  must  be  held  to  apply  only  where  the 
building  "is  destroyed  or  so  injured  by  the  elements  or  other 
cause,  as  to. become  untenantable  and  unfit  for  occupancy," 
after  the  tenant  has  been  in  occupation.  It  never  could  have 
been  the  intention  of  the  statute  that  a  tenant  might  hire  a 
dilapidated  house  for  a  certain  time,  agreeing  to  pay  a  specified 
rent  fur  it,  and  that  then  without  any  material  change  in  its 
condition  he  should  have  the  right  to  quit  aiid  surrender 
it  whenever  he  pleased.  The  statute  was  evidently 
intended  to  relieve  tenants  in  cases  analogous  to  that 
of  Weigall  v.  Waters,  6  T.  R.,  488,  where  during  the  term 
the  building  was  damaged  so  severely  by  a  tempest  as  to 
become  untenantable,  and  yet  the  tenant  was  held  bound  for 
the  rent.  The  offer  of  the  defendant  in  this  case  was  to  show 
what  was  the  condition  of  the  premises  in  November  and  De- 
cember. The  defendant  hired  them  on  the  6th  of  November, 
and,  in  my  view  of  the  statute,  the  evidence  fcas  immaterial 
unless  the  defendant  was  prepared  to  prove  that  from  some 
cause  occurring  after  the  6th  of  November,  they  had  become 


NEW  YOEK— JULY,  1865.  487 


Shaw  v.  Lenke. 


untenantable  and  unfit  for  occupancy,  and  his  offer  did  not  go 
to  that  extent. 

The  Justice  having  failed  to  render  his  decision  within  the 
time  limited  by  law,  lost  jurisdiction  of  the  cause,  and  the 
plaintiff's  only  remedy  was  to  sue  again  ( Wiseman  v.  The 
Panama  Railroad  Co.,  1  Hilt.,  301 ;  Watnon  v.  Davis,  19 
Wend.,  371 ;  Berrian  v.  Olmstead,  4=  E.  D.  Smith,  279).  The 
proceedings  in  the  District  Court  were  no  bar. 

The  defendant  admitted  that  the  plaintiff  said  that  he  would 
let  the  premises  on  his  account,  and  that  he  would  hold  him 
responsible  for  the  rent,  after  the  defendant  told  him  he  would 
leave  at  the  end  of  December.  The  letting  of  the  premises 
therefore,  to  Price,  in  January,  was  no  evidence  of  surrender. 
The  judgment,  in  my  opinion,  should  be  affirmed. 

Judgment  affirmed. 


HORATIO  F.  SIIAW  v.  ANDREW  LENKE  and  THADDECS  F.  OGO 

The  adjustment  of  gas-fixtures  to  a  gas-pipe  is  not  such  an  annexation  to  the 
freehold  as  to  make  them  a  part  of  the  realty  and  subject  to  the  operation 
of  a  grant  thereof. 

APPEAL  by  the  plaintiff  from  a  judgment  of  the  Sixth  Dis- 
trict Court,  dismissing  the  complaint. 

The  action  was  brought  to  recover  the  value  of  certain  gas- 
brackets and  chandeliers,  claimed  to  be  wrongfully  detained 
by  the  defendant.  The  fixtures  were  attached  to  two  buildings 
in  Thirty-Eighth  Street,  in  the  City  of  New  York,  belonging 
to  the  plaintiff's  assignor,  Richard  W.  Horn,  who  by  deed 
conveyed  the  houses  to  the  defendants. 

The  defence  was,  that  the  brackets  and  chandeliers  in  suit 
were  fixtures,  and  as  such  passed  by  the  conveyance  to  defend- 
ants, as  appurtenant  to  the  freehold. 

The  Court  below  so  decided,  and  rendered  judgment  for  the 
defendant.  The  plaintiff  appealed  to  the  Court  of  Common 
Pleas. 


4SS  COUST  OF  COMMON  PLEAS. 

Shaw  v.  Lenke. 

J.  F.  Malcolm,  for  appellant. 
Stitt  &  Huston,  for  respondents. 

BY  THE  COURT. — BRADY,  J. — The  rule  of  law  applicable  to 
this  case  is  stated  substantially  as  follows,  in  'Walker  v.  Sher- 
man (20  "Wend.,  645) :  "  Articles  of  furniture  movable  in  their 
nature,  are  not  fixtures,  although  attached  by  screws,  nails, 
brackets,  &c.  Such  things  are  hangings,  pier-glasses,  chimney- 
glasses,  book-cases,  carpets,  blinds,  curtains,  &c."  (Gib- 
bons on  Fixtures,  20,  21).  The  removal  of  gas-fixtures  is 
analogous  to  the  removal  of  a  stove  temporarily  attached  to 
the  floor  and  to  the  chimney,  by  means  of  the  pipe,  and  which 
would  not  pass  by  conveyance  as  part  of  the  property  (Free- 
land  v.  Southworth,  24  Wend.,  191). 

The  adjustment  of  the  bracket  or  chandelier  to  the  gas-pipe, 
is  not  such  actual  annexation  to  the  freehold  as  is  contemplated 
by  law.  The  fixture  itself,  though  employed  for  a  useful  pur 
pose,  and  often  highly  ornamental,  is  not  indispensable  to  the  en- 
joyment of  the  realty.  It  forms  no  part  of  the  soil  by  annexation, 
actual  contact,  or  otherwise.  It  is  not  fastened  to  the  wall,  and  it 
can  be  removed  without  injury  either  to  the  wall,  freehold,  or 
pipe  to  which  it  is  attached.  In  addition  to  this,  it  may  be 
said  with  propriety  that  it  has  become  by  usage  and  general 
concession,  as  much  nn  article  of  furniture  as  a  mirror  or  car- 
pet, although  not  so  universally  owned.  Without  pursuing 
the  subject  further,  however,  and  without  reviewing  the 
numerous  cases  on  the  subject  of  fixtures,  and  which  relate  in 
a  great  majority  to  improvements  made  for  the  purposes  of 
trade  or  manufacture,  it  is  sufficient  to  say  that  the  articles 
claimed  by  the  plaintiff  are  pot  fixtures,  and  part  of  the  realty, 
within  the  rule  established  by  any  case  decided  in  this  State. 
They  were  not  permanently  fastened  to  the  building,  or  habitu- 
ally attached,  as  in  iSnediker  v.  Warring  (12  K.  Y.,  171),  or  so 
connected  with  the  subject  of  the  grant  as  to  fit  the  building 
for  any  particular  purpose,  without  which  it  is  not  adapted  to 
the  business,  as  in  Taber  v.  Robinson  (36  Barb.,  483),  and 
Laflin  v.  Griffiths  (35  Id.,  58),  or  a  part  of  the  real  estate,  as 
in  Bishop  v.  Bishop  (11  X.  Y.,  123),  but  were  so  constructed 
as  to  be  movable,  and  put  up  evidently  with  that  purpose  in 
view.  They  are  certainly  exempt  from  the  operation  of  a 


NEW    YORK— JULY,   1865.  489 


Dikeman  v.  Puckbafer. 


grant,  even  without  reference  to  tlie  general  rules,  if  the  case 
of  Farrar  v.  Chaufeteie  (5  Denio,  527),  is  an  authority,  and  I  do 
not  understand  it  to  be  questioned.  It  was  held  in  that  case, 
that  machinery  put  up  with  a  view  to  its  being  removed  without 
injury  to  the  building,  is  not  a  fixture  passing  with  the  free- 
hold. The  case  of  Hartman  v.  Vultee,  in  this  Court  (May, 
Gen.  T.,  1865),  referred  to  by  the  appellant,  has  no  analogy  to 
this  case. 

I  think  the  judgment  should  be  reversed. 

Judgment  reversed. 


HENRY   M.   DIKEMAN   and   GEORGE  "W.  SEABOLD  v.  CHARLES 
PUCKHAFER  and  WILLIAM  HARRIS. 

An  error  of  the  Register  in  improperly  endorsing  a  chattel  mortgage,  whereby 
a  subsequent  purchaser  is  misled,  does  not  invalidate  the  mortgage ;  the 
making  of  such  indorsement  is  the  duty  of  the  Register,  and  its  omission  ia 
not  the  fault  of  the  mortgagee,  and  cannot  affect  his  rights. 

ft  seems  that  the  remedy  of -a  purchaser  who  has  been  misled  as  to  the  exis- 
tence of  a  chattel  mortgage  by  reason  of  an  omission  or  defect  in  the  in- 
dorsement or  filing  of  the  mortgage,  is  against  the  officer  making  such 
error. 

APPEAL  from  a  judgment  by  the  plaintiff.     The  facts  are 
fully  stated  in  the  opinion. 

BY  THE  COURT. — CARDOZO,  J. — In  January,  1863,  the  plain- 
tiffs sold  Messrs.  Boscomp  and  Schiffer  a  grocer's  wagon,  and 
took  back  a  mortgage  on  it  for  the  purchase  money,  viz.,  one 
hundred  dollars.  The  mortgage  did  not  specify  any  time  for 
payment,  and  consequently  was  due  immediately  (Howland  v. 
Willett,  3  Sandf.  S.  C.  K.,  608),  and  it  was  not  necessary  to 
demand  payment  of  it  to  enable  the  plaintiff  to  maintain  this 
action  (Howland  v.  Willett,  supra ;  Brown  v.  Cook,  3  E.  D. 
Smith,  123).  The  plaintiffs  duly  tiled  the  mortgage  in  the 
Register's  office,  but  the  Register  appears  not  to  have  prop- 
erly indexed  it,  according  to  the  act  of  1849,  and  this  omission, 


490  COURT  OF  COMMON  PLEAS. 

Dikeman  v.  Puckhafer. 

attributable  probably  to  the  difficulty  of  deciphering  the  names 
of  the  mortgagors,  has  led  to  the  dispute  between  the  parties 
and  to  this  suit. 

After  the  tiling  of  the  mortgage,  the  defendants  purchased 
the  wagon,  with  other  property,  from  the  mortgagors' ;  paying 
for  it  by  crediting  them  with  the  amount  of  an  old  indebted- 
ness of  one  hundred  and  seventy-two  dollars,  paying  on  their 
account  to  one  Hecker  (who'held 'a  mortgage  on  this  wagon), 
one  hundred  dollars,  and  also  paying  to  the  mortgagors  the  sum 
of  forty  dollars  in  cash.  The  defendants,  before  making  the 
purchase,  examined  the  index  of  chattel  mortgages  in  the  Reg- 
ister's office,  but  by  reason  of  the  omission  of  the  Register, 
they  failed  to  discover,  and  they  had  not  any  notice  in  fact  of, 
the  existence  of  the  mortgage.  The  plaintiffs  demanded  this 
wagon  from  the  defendants,  but  they  refused  to  surrender  it, 
and  claim  to  hold  it  discharged  of  the  lien  of  the  mortgage  to 
the  plaintiffs.  A  demand  before  suit  brought  is  distinctively 
and  positively  sworn  to  by  the  plaintiff  Seabold,  and  therefore, 
while  I  incline  to  think  that  a  demand  after  the  summons  had 
issued  would  not  be  sufficient,  it  is  unnecessary  to  determine 
that  point. 

The  jury  found  for  the  defendants.  I  think  the  verdict  con- 
trary to  law. 

Upon  the  evidence,  the  plaintiffs  had  done  all  that  they  were 
required  to  do  to  make  the  mortgage  as  to  them  valid.  A  duty, 
viz.,  to  index  the  mortgage,  rested  on  the  Register,  with 
which  the  plaintiffs  had  nothing  to  do  ;  over  which  they  had  no 
control,  and  the  omission  of  which  was  not  their  fault.  They 
were  bound  to  file  the  mortgage,  and  they  did  so.  That  the 
defendants  did  not  through  the  registry  obtain  notice  of  this 
mortgage  was  not  the  plaintiffs'  fault  and  cannot  affect  their 
rights  (See  Dodge  v.  Potter,  18  Barb.,  193).  The  mortgage 
was  given  for  a  valid  and  valuable  consideration  ;  the  bona 
fides  of  it  was  not  attempted  to  be  impeached ;  it  was  filed 
pursuant  to  the  statute,  and  the  defendants,  if  they  have  been 
misled  into  parting  with  their  money  for  the  wagon  in  ignorance 
of  the  plaintiffs  lien,  must  seek  redress  against  the  officer  whose 
omission  to  do  nis  duty  has  operated  to  their  loss.  They  can- 
not claim  to  hold  the  property  free  of  the  mortgage. 

The  judgment  should  be  reversed. 


NEW  YOKK— NOVEMBER,  1865.  491 

Ball  v.  The  New  Jersey  Steamboat  Company. 


HUDSON  W.  BALL  v.  THE  NEW  JERSEY  STEAMBOAT  COMPANY. 

To  charge  a  common  carrier  there  must  either  be  a  special  acceptance  of  the 
property  or  a  delivery  according  to  the  established  usage  in  the  carrier's  bus- 
iness ;  and  where  by  the  usage,  there  'is  a  person  appointed  to  receive  an<\ 
take  charge  of  a  particular  kind  of  property,  the  delivery  must  be  to  him, 
and  not  to  one  engaged  in  the  discharge  of  other  duties. 

Where  carrier  has  an  agent  on  his  boat  to  receive  and  take  charge  of  baggage 
and  to  check  it,  it  is  not  a  good  delivery  to  leave  it  upon  the  boat  without 
obtaining  a  check  or  calling  the  agent's  attention  to  it. 

A  cartman  took  the  plaintiffs  trunk  to  the  defendants'  wharf,  and  was  there 
directed  by  a  baggage  master  having  charge  of  a  different  class  of  goods  to 
take  it  on  board  the  boat.  The  cartman  deposited  the  trunk  with  other 
trunks  at  the  baggage-room  door,  without  obtaining  a  check  for  it  or  call- 
ing to  it  the  attention  of  the  baggage  master  having  charge  of  that  class  of 
baggage  ; — Held,  that  this  was  not  such  a  delivery  to  or  acceptance  by  the 
defendants  as  to  make  them  liable  for  the  loss  of  the  trunk. 

APPEAL  by  the  plaintiff  from  a  judgment  entered  on -a 
referee's  report. 

This  was  an  action  against  the  defendants  as  common 
carriers  to  recover  the  value  of  a  trunk  placed  on  board 
their  boat,  the  "New  World."  On  the  14th  of  August, 
1861,  the  plaintiff  sent  a  trunk  containing  his  wife's  clothing 
by  a  cartman  to  be  delivered  on  board  one  of  the  defendant's 
boats  for  Albany.  The  cartman  took  the  trunk  to  the  dock 
where  one  of  the  defendants'  employees  asked  him  "  where  ho 
was  going?"  He  answered  that  he  wanted  to  put  the  trunk 
on  board.  The  man  then  directed  him  "to  drive  to  the  first 
gangway  and  put  it  on  board."  The  cartman  carried  it  on 
board  and  left  it  with  the  other  trunks  at  the  baggage-room 
door  on  the  boat.  He  did  not  ask  the  person  who  directed 
him  for  a  check,  though  he  had  checks  in  his  hand,  and  did  not 
call  any  person's  attention  to  the  trunk  when  he  placed  it  at  the 
baggage-room  door. 

The  person  who  spoke  to  the  cartman  was  the  dock  agent  of 
the  defendants,  whose  duty  it  was  to  instruct  persons  coming 
with  baggage  not  going  west  of  Albany,  to  take  it  on  board 


4D2  COURT  OF   COMMON  PLEAS. 

Ball  v.  The  New  Jersey  Steamboat  Company. 

the  boat,  or,  if  going  west  of  that  place,  to  have  it  checked  on 
the  dock  and  placed  in  baggage  cars.  The  baggage-room  on 
board  the  boat  was  in  charge  of  another  person,  whose  duty 
it  was  on  presentation  of  passenger  tickets  to  check  baggage  for 
Albany  and  Saratoga.  When  baggage  was  brought  unaccom- 
panied by  a  passenger  ticket,  he  took  charge  of  it,  if  his  atten- 
tion was  called  to  it,  but  not  otherwise,  and  he  took  measures 
to  enable  him  to  identify  the  person  entitled  to  it.  This  trunk 
had  no  card  or  mark  on  it  to  identify  it,  so  far  as  was  shown 
by  the  evidence. 

The  referee  found  the  above  facts,  and  that  this  usage  of 
the  defendants  had  existed  for  thirteen  years;  that  the 
defendants  had  large  cards  posted  conspicuously  with  the 
words,  "  Albany  baggage  checked  on  the  boat.  Baggage  for 
the  west  checked  on  the  dock,"  and  that  the  trunk  had  been 
demanded  by  the  plaintiff,  but  never  recovered.  He  also  found 
that  the  plaintiff  was  negligent  in  delivering  the  trunk,  and 
that  the  complaint  should  be  dismissed. 

On  this  report  the  defendants  entered  up  judgment,  from 
which  the  plaintiff  appealed. 

Henry  Whinfield,  for  plaintiff  appellant. 
Charles  Jongs,  for  defendant  respondent. 

BY  THE  COTTKT. — DALY,  F.  J. — There  was  no  contract,  ex- 
press or  implied,  to  carry  the  trunk  as  baggage,  for  no  person 
went  with  it  as  a  passenger  that  night  in  the  defendant's  steam- 
boat ;  nor  was  it  delivered  to  be  transported  as  freight,  which, 
by  the  established  course  of  the  defendant's  business,  is  received 
by  clerks  as  it  comes  upon  the  wharf,  and  taken  to  a  different 
set  of  clerks,  where  it  is  weighed,  or  tallied,  entered,  receipted 
for,  and  then  stowed  away  ;  the  rule  being  that  the  delivery 
of  the  goods,  to  charge  the  carrier,  must  be  to  the  servant  or 
agent  appointed  to  receive  them,  and  not  to  one  engaged  in 
other  duties  (Blanchard  v.  Isaacs,  3  Barb.  R.,  388  ;  Leigh  v. 
Smith,  1  Car.  &  P.,  638).  The  question  in  this  case,  therefore, 
is  whether  there  was  such  a  delivering  and  acceptance  of  the 
trunk  as  would  make  the  defendants  responsible  for  its  loss, 
and  in  my  judgment  there  was  not. 

The  only  intimation  which  the  cartman  received  from  the 
plaintiff  was  to  take  the  trunk  to  the  steamboat  New  World, 


NEW  YORK— NOVEMBER,  1865.  493 

Ball  v.  The  New  Jersey  Steamboat  Company. 

for  Albany.  As  the  cartman  came  upon  the  wharf  a  person 
having  checks  in  his  hand,  and  who  was  checking  trunks,  asked 
him  where  he  was  going,  and  upon  his  answering  that  he 
wanted  to  put  the  trunk  on  board  the  boat  for  Albany,  this 
person  told  him  to  drive  to  the  first  gangway  and  put  it  on 
board.  By  the  regulations  which  the  defendants  bad  estab- 
lished, all  baggage  going  west  of  Albany  was  checked  upon 
the  wharf,  and  baggage  for  Albany  and  Saratoga,  upon  the 
boat.  Notice  of  this  regulation  upon  large  cards,  was  posted 
at  conspicuous  places  on  the  wharf,  and  there  was  a  baggage- 
room  on  board  of  the  boat  (in  charge  of  a  baggage-man),  who 
received  and  checked  baggage  for  Albany  and  Saratoga  upon 
the  presentation  of  the  passenger's  ticket.  Baggage  was  not 
checked  unless  a  passenger  ticket  was  shown  ;  but  if  baggage 
was  brought  by  a  cartman  or  other  person  with  the  statement 
that  it  was  going  to  Albany,  the  baggage  man  put  it  in  the 
baggage  room  with  the  unchecked  baggage,  and  did  not  de- 
liver it  without  a  description  of  the  baggage  or  its  contents,  and 
upon  doing  so  he  took  a  receipt.  When  baggage  came  unac- 
companied by  a  passenger,  the  baggage  man  took  charge  of  it 
if  his  attention  was  called  to  it,  }>ut  not  otherwise,  and  took 
directions  which  would  enable  him  to  identify  the  person  en- 
titled to  receive  it.  Most  of  the  baggage  which  came  in  that 
way,  was  brought  by  the  City  Express  Companies,  and  was 
identified  by  the  card  and  number  they  put  upon  it,  a  corres- 
ponding card  and  number  being  given  by  them  to  the  pass- 
enger. 

The  cartman  took  the  trunk  upon  the  .boat  and  deposited  it 
with  other  trunks  at  the  baggage-room  door,  and  then  left 
without  saying  anything  or  calling  any  one's  attention  to  it,  and 
the  referee  has  found  that  the  trunk  had  on  it  no  mark  or 
direction  indicating  to  whom  it  belonged  or  where  it  was  to 
go.  The  contents  of  the  trunk  consisted  of  the  plaintiff's  wife's 
clothing.  On  the  following  evening  he  bought  a  passenger 
ticket  for  her,  and  she  went  to  Albany  that  night  without  a 
trunk. 

If  the  plaintiff  'meant  to  send  the  trunk  to  Albany  by  the 
steamboat  a  day  in  advance  of  the  departure  of  his  wife,  he 
should  either  have  sent  it  as  freight,  or  instructed  the  cartman 
to  put  it  into  the  custody  of  some  person  upon  the  boat  author- 


494  CO  [JET  OF  COMMON  PLEAS. 

Ball  v.  The  New  Jersey  Steamboat  Company. 

•  ized  to  take  charge  of  it.  The  cartraan,  receiving  no  other  in- 
struction but  to  take  it  to  the  steamboat  New  World,  for 
Albany,  may  very  rationally  have  supposed  that  the  plaintiff 
or  some  other  person  was  going  with  it  as  a  passenger  in  the 
boat  that  night,  who,  upon  coming  on  board  would  have  it 
checked  in  the  usual  way.  He  was  not  directed  to  get  a  check 
for  it,  nor  could  he  have  obtained  one  without  procuring  and 
paying  for  a  passenger  ticket,  and  having  received  no  other 
instruction  but  what  has  been  above  stated,  he  no  doubt  con- 
sidered his  duty  sufficiently  discharged  when  he  placed  it  with 
the  other  trunks  at  the  baggage-room  door.  That  the  trunk 
was  not  taken  charge  of  by  the  baggage-man  was  owing  to  the 
fact  that  his  attention  was  not  called  to  it,  and  this  was  attrib- 
utable to  the  plaintiff's  rather  than  to  the  cartman's  negligence. 
To  charge  a  carrier  or  carriers,  there  must  be  an  acceptance  of 
the  goods  either  in  a  special  manner,  or  according  to  the  usage 
of  their  business  (Story  on  Bailments,  §  533  ;  Angell  on  Carriers, 
§  140),  and  in  this  case  there  was  not  such  a  delivery  into  the 
custody  of,  and  acceptance  of  the  trunk  for  carriage  by,  the  de- 
fendants as  would  make  them  liaole  for  its  loss,  or  which  would 
create  an  ordinary  bailment.  The  direction  given  by  the  de- 
fendant's agent  upon  the  wharf  to  the  cartrnan  to  take  the 
trunk  on  board  was  not  an  acceptance.  His  duties  were  lim- 
ited to  checking  the  baggage  of  emigrants  and  to  instructing 
persons  having  baggage  going  west  of  Albany  to  have  it  checked 
upon  the  wharf,  and  if  it  were  for  Albany  to  put  it  on  board  of  the 
boat.  He  gave  the  proper  instructions  to  the  cartman,  and  if 
the  trunk  was  not  checked  on  board  the  boat,  as  it  should  have 
been,  if  the  intention  was  to  send  it  to  Albany  as  baggage,  it 
was  through  the  plaintiff's  negligence  in  not  giving  the  cart- 
man  instructions  to  that  effect.  Left  upon  the  boat  without 
anything  to  indicate  to  whom  it  belonged  or  where  it  was  to 
go ;  and  without  being  brought  to  the  notice  of  any  one  in 
authority  upon  the  boat,  it  was  in  the  power  of  any  dishonest 
person  who  went  up  in  the  boat  that  night  to  get  a  check  for  it 
as  his  own  property.  It  was  held  in  Leigh  v.  Smith,  1 
Car.  &  P.,  638,  that  the  delivery,  to  bind  the  carrier,  must 
be  to  some  one  in  authority,  and  that  a  delivery  to  one  of  the 
crew  of  a  vessel  would  not  be  sufficient.  In  Buckman  v. 
Levy  (3  Camp.,  414),  the  goods  were  left  upon  the  wharf  piled 


NEW  YOKK— NOVEMBER,   1865.  495 

Ball  v.  The  New  Jersey  Steamboat  Company. 

up  among  other  goods,  with  the  name  upon  them  of  the  person 
to  whom  they  belonged  and  the  place  to  which  they  were  to 
be  sent,  while  a  person  supposed  to  be  a  servant  of  the  wharf- 
inger was  upon  the  wharf,  and  it  was  held  that  there  was  not 
such  a  delivery  to  the  wharfinger  as  would  make  him  re- 
sponsible for  the  loss  of  the  goods,  and  in  Packard  v.  Getman, 
6  Cow.  R.,  757,  it  was  held  that  even  where  it  was  the  usage 
to  leave  the  goods  upon  the  wharf  near  the  boat,  it  is  not  a 
good  delivery  unless  accompanied  by  express  notice  to  the 
carrier.  The  responsibility  of  the  carrier  does  not  commence 
until  there  has  been  a  complete  delivery  to  him  (2  Kent's  Com. 
604),  and  where,  as  in  this  case,  by  the  established  usage 
of  the  defendant's  business,  there  was  an  agent  upon  the  boat 
to  receive  and  take  charge  of  baggage  for  Albany,  who  gave  a 
voucher  or  check  for  it,  it  was  not  a  good  delivery  to  leave  the 
trunk  upon  the  boat  without  either  getting  a  check  for  it,  or 
calling  this  agent's  attention  to  it  (Selway  v.  HoUoway,  1  Ld. 
Ray.,  46 ;  Cobban  v.  Downe,  5  Esp.  R.,  41 ;  Tower  v.  TJtica  and 
Schenectady  JR.  R.  Co.,7  Hill,  47  ;  Boehem  v.  Combe,  2  Maul. 
&  S.,  172 ;  Harris  v.  Packwood^  3  Taunt.,  264 ;  Lovett  v.  Hoiks, 
2  Show,  128.  The  obligation  to  carry  the  trunk  as  baggage,  as 
I  have  said,  did  not  exist,  as  that  is  an  obligation  incident  to 
and  growing  out  of  the  contract  for  the  carriage  of  the  pass- 
enger, and  no  passenger  went  with  it.  If  it  had  been  called 
to  the  attention  of  the  baggage-man,  and  he  had  taken  it  and 
placed  it  with  the  unchecked  baggage,  the  defendants  would 
have  been  entitled  to  a  compensation  for  its  carriage  ;  but  upon 
the  facts  stated,  no  obligation  on  their  part  can  be  implied, 
either  to  carry  it  as  baggage,  or  as  freight.  The  report  of  the 
referee  should  be  confirmed. 


-196  COURT  OF   COMMON  PLEAS. 


Wilson  v.  Halpin. 


AUBREY  C.  WILSON  v.  MICHAEL  HALPIN. 

Where  a  guest  at  an  inn  is  notified  that  he  must  put  his  haggage  in  a  particular 
place,  that  it  may  be  safely  kept,  and  he  neglects  to  do  so,  the  innkeeper  is 
not  liable  in  case  of  its  loss. 

A  guest  was  lodged  in  defendant's  inn,  in  a  room  with  several  other  persons, 
without  objection  on  his  part.  He  asked  the  chambermaid  if  he  might  leave 
his  baggage  in  the  room,  and  was  told  by  her  to  deposit  it  with  the  clerk  at 
the  bar,  that  being  the  established  regulation  of  the  house.  The  guest 
placed  his  baggage  under  his  bed,  and  during  his  temporary  absence  from 
the  room  it  was  taken ; — Held,  that  the  innkeeper  was  not  liable. 

APPEAL  by  the  defendant  from  a  judgment  of  the  Third  Dis- 
trict Court. 

The  defendant  was  the  proprietor  of  an  emigrant  boarding 
house  or  inn,  and  as  such  received  the  plaintiff's  assignor  as  a 
lodger.  It  was  a  general  regulation  of  the  house,  which  was 
brought  to  the  notice  of  the  plaintiff 's  assignor,  that  all  baggage 
should  be  left  with  the  clerk  at  the  bar.  The  lodger,  without 
objection  on  his  part,  was  placed  in  a  room  with  several  other 
persons,  and  placed  his  bag  under  his  bed.  During  a  temporary 
absence  from  the  room,  the  bag  was  stolen,  and  an  action  was 
brought  to  recover  its  value. 

The  court  below  rendered  judgment  for  the  plaintiff,  and  the 
defendant  appealed. 

Thomas  H.  Hurley,  for  appellant. 
James  G.  White,  for  respondent. 

BY  THE  COURT. — DALY,  F.  J. — The  defendant  kept  an  emi- 
grant boarding  house  or  inn.  The  plaintiff's  assignor,  Blakely, 
came  there  and  was  lodged,  without  any  objection  being  made 
upon  his  part,  in  a  room  with  several  other  persons  who  were 
strangers  to  him.  He  asked  the  chambermaid  if  he  might 
leave  his  baggage  in  the  room,  and  she  told  him  to  take  it 
down  to  the  boy  in  the  store  and  give  it  into  his  charge.  In- 
stead of  doing  this  he  put  it  under  the  bed,  and  left  the  room, 
leaving  his  brother  and'another  man  there.  When  he  returned 
the  bag  was  gone.  The  chambermaid  testified  that  she  was 


NEW   YORK— NOVEMBER,   1865.  497 

Wilson  v.  Halpin. 

instructed  when  persons  brought  their  baggage  to  the  room  to 
take  it  down  stairs.  What  she  told  Blakel y,  therefore,  was  not 
merely  a  suggestion  of  her  own,  but  the  established  regula- 
tion of  the  house ;  and  where  persons,  strangers  to  each 
other,  were  lodged  in  the  same  room,  it  was,  as  the  event 
in  this  case  has  shown,  a  reasonable  and  proper  regulation,  to 
secure  the  safety  of  baggage.  The  defendant  kept  a  board- 
ing house  and  a  liquor  store.  He  received  every  person  that 
came,  accommodating  them  by  the  day  or  by  the  week  at  a 
charge  of  one  dollar  per  day.  If  the  guest  came  without  bag- 
gage, he  paid  for  his  accommodation  every  morning,  or  the 
guests  paid  as  Blakely  did,  for  each  meal,  and  for  their  lodg- 
ing each  morning.  In  such  an  establishment,  where  every  one 
that  came  was  received,  and  in  consequence  of  the  low 
rate  charged,  many  were  lodged  in  the  same  room, 
such  a  regulation,  for  the  safety  of  the  baggage  of  each  guest, 
was  indispensable.  Instead  of  complying  with  it  when  told  by 
the  chambermaid  what  to  do,  Blakely  put  his  bag  under  the 
bed,  and  through  that  act  he  was  himself  the  cause  of  its  being 
lost,  and  the  defendant  is  not  answerable  for  it.  If  the  guest  is 
notified  to  put  his  baggage  in  a  particular  place,  where  it  will 
be  safely  kept,  and  he  neglects  to  do  so  ;  the  innkeeper,  if  it  is 
lost,  is  not  liable  (Saunders  v.  Spencer,  Dyer,  266  J  /  Calye's 
Case,  8  Co.,  33,  a;  Burgess  v.  Clement,  4  M.  &  S.,  306 ;  Rich- 
mond v.  Smith,  8  B.  &  Cress.,  9 ;  Van  Wyck  v.  Howard,  12 
How.  P.  R.,  151). 

We  were  under  the  impression  upon  the  argument  that  the 
testimony  of  Blakely  and  the  chambermaid  were  in  conflict, 
but  upon  examination  such  does  not  appear  to  have  been  the 
case.  Blakely  was  the  first  witness  called,  and  he  swore  that 
he  was  not  told  by  the  defendant  or  any  other  person  that  the 
bag  must  be  left  behind  the  bar.  The  chambermaid  was  after- 
wards called  by  the  defendant,  and  her  statement  was  not  that 
Blakely  was  told  that  he  must  leave  his  bag  behind  the  bar, 
but  that  he  should  take  it  down  to  the  boy  in  the  store,  and  put 
it  in  his  charge.  This  was  not  necessarily  conflicting,  for  both 
statements  might  be  true,  and  if  the  chambermaid  did  not  give 
the  particular  direction  which  she  swore  she  did,  Blakely 
might  have  been  called  to  contradict  her. 

The  judgment  should  be  reversed. 
32 


498  COTJKT  OF  COMMON  PLEAS. 


Harper  v.  Hall. 


DAVID  HARPER  v.  ISAAC  HALL. 

The  General  Term  of  the  Marine  Court  has  the  same  power  as  the  General 
Term  of  the  Supreme  Court  to  correct  the  entries  of  its  own  judgments 
and  decisions. 

On  a  motion  before  the  General  Term  of  the  Marine  Court  to  dismiss  an 
appeal  thereto,  for  want  of  prosecution,  an  order  was 'erroneously  entered 
affirming  the  judgment  appealed  from  ; — Held,  that  the  General  Term  might, 
on  motion,  correct  such  order,  so  as  to  make  it  conform  to  the  real  decision 
of  the  court. 

An  order  of  the  General  Term  of  the  Marine  Court  dismissing  an  appeal  thereto 
for  want  of  prosecution,  is  not  a  final  determination,  from  which  o.n  appeal 
can  be  taken  to  the  Common  Pleas. 

APPEAL  by  the  defendant  from  a  judgment  of  the  Marine 
Court  at  General  Term  dismissing  the  defendant's  appeal  thereto. 

On  the  verdict  of  a  jury,  judgment  was  entered  for  the 
plaintiff,  and  the  defendant  appealed  therefrom  to  the  General 
Term  of  the  court  below,  on  a  case  and  exceptions.  On  the 
plaintiff's  motion,  the  General  Term  below  dismissed  the  appeal 
on  the  ground  of  the  want  of  service  of  printed  copies  of  the 
appellant's  case,  and  an  order  was  entered  dismissing  the  appeal 
and  affirming  the  judgment,  with  costs. 

-  On  a  motion  subsequently  made  by  the  plaintiff,  the  General 
Term  below  amended  the  order  so  as  to  make  it  conform  to 
the  decision  of  the  Court. 

The  defendant  appealed  to  the  Common  Pleas. 

7?.  H.   Underbill,  for  appellant. 

Churchill,  Welch  and  Woodbury,  for  respondent. 

BY  THE  COURT. — CARDOZO,  J. — The  defendant  appealed  to  the 
General  Term  of  the  Marine  Court  from  a  judgment  against 
him  at  the  Special  Term.  The  respondent  moved  to  dismiss 
the  appeal  for  want  of  prosecution,  which  motion  was  granted; 
but  the  attorney  who  prepared  the  order  erroneously  made  it 
also  provide  that  the  judgment  appealed  from  be  affirmed  with 
costs.  The  respondent  discovering  that  the  affirmance  of  the 
judgment  was  imperfectly  inserted  in  the  order,  moved  the 


NEW  YOEK— NOVEMBER,   1865.  499 

Harper  v.  Hall. 

General  Term  of  the  Marine  Court  to  correct  the  order,  so  "as  to 
make  it  conform  to  the  real  decision  of  the  Court.  This  motion 
was  granted,  and  by  an  order  of  the  General  Term  of  the 
Court  below,  the  correction  was  made. 

The  question  before  us  is,  had  the  Court  the  power  which  it 
has  exercised.  The  point  is  not  free  from  difficulty,  but  after 
very  careful  consideration  I  have  concluded  that  the  Marine 
Court  has  not  exceeded  its  authority. 

It  may  be  conceded  that  prior  to  the  act  of  1853  (Session 
Laws  of  1853,  chap.  617,  p  1165),  the  Marine  Court  would  not 
have  had  any  power  to  correct  an  entry  of  its  judgment. 

This  Court  held  in  an  unreported  case  that  where  a  justice 
of  one  of  the  District  Courts  having  discovered,  after  he  had 
entered  a  judgment,  that  his  calculation  of  interest  on  the 
amount  claimed  was  erroneous,  corrected  the  amount,  he 
had  not  the  power  so  to  do,  and  therefore  that  the  judgment 
must  be  reversed.  Independent  of  the  Statute  above  cited,  I 
know  of  nothing  which  would  give  the  Marine  Court  greater 
power  in  that  respect  than  the  District  Courts  possess.  But 
the  statute  of  1853  made  a  great  change.  It  gave  to  the 
Marine  Couct  power  which  it  had  not  theretofore  possessed. 
It  qreated  a  General  Term  of  the  Court,  and  authorized  appeals 
to  be  taken  to  it  from  the  Special  Term,  in  the  like  manner  and 
with  the  like  effect  as  an  appeal  from  the  Special  to  the  General 
Term  of  the  Supreme  Court.  One  effect  of  an  appeal  to  the 
Supreme  Court  is  that  that  Court  may  correct  an  entry  in  the  re. 
cord  of  its  decision,  and  how  can  we  say  that  an  appeal  to  the 
Marine  Court  has  had  the  like  effect  as  if  it  were  in  a  case 
in  the  Supreme  Court  if  this  power  be  denied.  In  order  that 
the  appeal  to  the  General  Term  of  the  Marine  Court  can  be  said 
to  have  the  like  effect  as  an  appeal  from  the  Special  Term  to 
the  General  Term  of  the  Supreme  Court,  it  must  be  held  that 
the  General  Term  of  the  Marine  Court  can  do  every  thing,  in 
respect  to  a  case  brought  before  it  on  appeal,  which  the 
Supreme  Court  could  do  under  similar  circumstances.  Such 
seems  to  me  to  %have  been  the  intention  of  the  legislature, 
and  therefore  I  think  the  act  must  receive  that  construction. 

It  is  undoubtedly  true  that  the  General  Term  of  the  Marine 
Court  could  not  grant  a  new  trial  on  the  ground  of  surprise  or 
newly  discovered  evidence,  or  that  the  verdict  was  contrary  to 


500  .COURT  OF  COMMON  PLEAS. 

Schneider  v.  The  Irving  Bank. 

the  weight  of  evidence  ;  but  neither,  in  the  first  instance,  could 
the  Supreme  Court,  for  such  a  motion  would  in  that  Court 
have  to  be  addressed  primarily  to  the  Special  Term. 

But  a  motion  to  correct  the  entry  of  the  decision  of  the  Gener- 
al Term — or  a  motion  for  a  reargument,  and  the  like — which 
are  motions  which  may  be  made  in  the  General  Term  of  the 
Supreme  Court,  may,- 1  think,  also  be  made  in  the  General  Term 
of  the  Marine  Court.  It  is  only  by  so  holding  and  giving  to 
that  Court  as  full  control  over  the  case  as  the  Supreme  Court 
would  possess  in  a  case  in  the  General  Term  of  that  Court,  that 
full  force  and  efficacy  can  be  given  to  that  branch  of  the  statute 
which  declares  that  the  appeal  shall  be  with  the  like  effect  as 
an  appeal  in  the  Supreme  Court. 

I  think,  therefore,  that  the  Court  below  had  the  power  to  en- 
tertain the  motion  to  amend  the  order  of  the  General  Term  in 
conformity  with  the  real  state  of  facts,  and  that  having  done  so, 
and  presented  a  return  to  the  appeal  to  this  Court  which  shows 
that  the  appeal  below  was  dismissed  for  want  of  prosecution, 
there  is  no  such  final  judgment  as  must  exist  before  an  appeal 
can  be  taken  to  this  Court. 

I  think  the  preliminary  objection  raised  by  the*  respondent's 
counsel  should  be  sustained  and  the  appeal  be  dismissed. 


CHARLES  SCHNEIDER  and  others  v.  THE  IRVING  BANK. 

Where  a  Bank  was  notified  by  the  drawer  of  a  check  not  to  pay  it,  and  the 
paying-teller  promised  not  to  do  so,  but  afterwards  paid  it  to  the  holder 
on  presentation, — Held,  that  the  drawer  might  recover  from  the  Bank  the 
amount  of  the  check  so  paid. 

Entries  in  a  depositor's  bank-book  do  not  constitute  an  account  stated  between 
the  depositor  and  the  Bank,  where  the  former,  within  a  reasonable  time 
after  the  book  is  balanced,  makes  objections  thereto. 

APPEAL  by  the  defendant  from  a  judgment  of  the  Eighth 
District  Court. 

The  facts  are  fully  stated  in  the  opinion  of  the  Court. 


NEW  YOKE— NOVEMBER,  1865.  501 

Schneider  v.  The  Irving  Bank. 

JS.  7?.  Bogardus,  for  appellant. 
A.  A.  P/tillips,  for  respondents. 

BY  THE  COURT. — CAKDOZO,  J. — On  the  17th  of  July,  1863, 
the  plaintiffs,  who  kept  an  account  with  the  defendant,  drew 
a  check  upon  it  for  two  hundred  and  sixteen  dollars  and 
seventy-one  cents,  and  delivered  it  to  the  Central  Express 
Company.  About  ten  minutes  after  the  check  was  issued  one 
of  the  plaintiffs  gave  notice  to  the  defendant  that  they,  the 
plaintiffs,  had  a  defence  to  it,  and  the  Bank  must  not  pay  it. 
The  teller,  upon  receiving  the  notice,  stated  that  the  check  had 
not  yet  been  presented,  and  promised  not  to  pay  it.  Notwith- 
standing this  notice  and  promise,  the  defendant  did  pay  the 
check.  There  is  some  conflict  as  to  the  subsequent  transactions 
between  the  Bank  and  the  plaintiffs,  but  in  support  of  the 
judgment  I  think  we  must  hold  that  the  Justice  found  that 
the  plaintiffs  knew  nothing  about  the  payment  of  the  check 
until  their  Bank-book  was  written  up  about  a  month  afterwards, 
and  that  when  the  check,  with  their  other  vouchers,  was  thus 
returned  to  them,  the  plaintiffs  called  upon  the  Bank  about  it 
I  do  not  think  we  can  say  that  this  amounted  to  an  account 
settled  between  the  parties. 

Neither  party  states  what  was  said  in  that  interview  ;  but 
as  the  plaintiffs  called  upon  the  defendant  as  soon  as  the  check 
was  returned  to  them,  and  that  was  followed  by  this  suit  at  no 
very  considerable  period  afterwards,  I  do  not  think  it  can  be 
said  that  the  plaintiffs  acquiesced  in  the  account,  as  stated  by 
the  defendant,  on  counting  up  or  balancing  the  plaintiffs'  book. 

The  only  question,  then,  presented  in  this  case  is  whether  the 
defendant,  after  receiving  notice  and  promising  not  to  pay  the 
check,  had  the  right  to  pay  it  and  charge  the  amount  as  a 
payment  to  the  account  of  the  plaintiff;  and  I  am  clearly  of 
opinion  that  it  had  not.  The  check  was  but  an  order  on  the 
defendant,  which  it  had  not  accepted,  and  upon  which  there- 
fore it  was  not  liable.  It  was  perfectly  competent,  therefore, 
for  the  plaintiffs  to  revoke  the  authority  which  they  had  given 
to  the  Bank  to  apply  their  funds  to- the  payment  of  the  check. 
The  Bank  had  not  accepted  or  promised  to  pay  the  check,  and 
therefore  owed  no  duty  in  the  premises  except  to  the  plaintiffs. 

If  it  be  conceded  that  the  Bank,  by  this  unauthorized   pay- 


502  COUET  OF  COMMON  PLEAS. 

Annett  v.  Foster. 

ment,  acquired  whatever  cause  of  action  existed  against  the 
plaintiffs  in  favor  of  the  payees  of  the  check,  yet  this  judgment 
should  not  be  disturbed.  The  Bank  did  not  set  up  any  counter, 
claims  against  the  plaintiffs,  but  tried  the  case  simply  upon  the 
question  of  their  right  to  pay  this  check.  Had  a  counter-claim 
been  interposed,  the  plaintiffs  might  have  gone  into  evidence  to 
show  that  they  had  a  defence  to  the  claim  in  payment  of  which 
they  had  issued  this  check,  as  they  stated  to  the  teller  of  the 
Bank.  As  the  Bank  can  yet  sue  the  plaintiffs,  if.it  thinks  it  has 
acquired  a  cause  of  action  by  becoming  possessed  of  the  check, 
it  will  not  be  prejudiced  by  the  affirmance  of  this  judgment, 
which,  upon  the  testimony  and  the  course  of  the  trial  below,  is 
correct.  The  objection  that  the  check  was  not  tendered  to  the 
Bank  was  not  taken  below,  and  cannot  be  relied  on  here ;  but  if 
the  Bank  wish  it,  the  check  must  be  taken  from1  the  filea,  and 
delivered  up  to  it. 

I  think  the  judgment  should  be  affirmed. 


ROBERT  ANNETT  v.  DAVID  FOSTER. 

Where  a  vessel  was  attached  to  a  wharf  by  a  line  lying  for  most  of  its  length 
beneath  the  water,  and  at  such  a  distance  from  the  wharf  as  to  leave  ample 
passage-way  between  it  and  the  wharf  for  vessels  to  pass  to  and  fro,  but  no 
person  was  on  deck  to  loosen  the  line  or  warn  vessels  attempting  to  pass, — 
Held,  negligence  which  rendered  the  owners  liable  for  any  damages 
resulting  therefrom. 

The  relation  of  master  and  servant  between  the  owner  and  master  of  a  vessel 
and  the  liability  of  the  former,  as  owner,  for  negligence  in  its  management 
does  not  cease  unless  the  owner  has  given  up  all  control  of  the  vessel  and  of 
her  employment,  and  all  immediate  and  direct  interest  in  the  freight  earned 
by  her.  Hence,  where  the  agreement  between  the  owner  and  master  of  a 
vessel  was  that  the  former  should  make  contracts  for,  and  receive  the  freight, 
and  pay  wharfage,  and  the  master  should  receive  a  share  of  the  freight 
money,  and  pay  all  other  expenses,  and  be  allowed  to  select  the  kind  of  em- 
ployment for  the  vessel, — Held,  that  this  was  not  such  a  surrender  of  control 


NEW  YORK— NOVEMBER,   1865.  503 


Annett  v.  Foster. 


as  to  make  the  master  owner  pro  Tiac  rice,  or  relieve  the  owner  of  liability 
for  injuries  arising  from  negligence  in  the  management  of  the  vessel. 

What  acts  will  divest  the  owner  of  his  responsibility  for  the  management  of 
a  vessel, — considered. 

APPEAL  by  the  defendant  from  a  judgment  of  the  District 
Court  for  the  Third  Judicial  District. 

The  action  was  brought  to  recover  damages  for  injuries 
caused  to  the  plaintiff 's  steamboat,  the  u  Thomas  E.  Hulse," 
from  a  collision  with  the  defendant's  schooner  "  Cataract." 

The  schooner  was  lying  apparently  at  anchor  opposite  the  Jane 
Street  pier,  and  about  one  hundred  yards  from  the  pier  to  which 
she  was  in  fact  fastened  by  a  line,  the  line  dipping  into  the  water 
immediately  from  the  pier  and  the  bow  of  the  schooner.  The 
steamboat  was  passing  up  between  the'schooner  and  the  pier, 
which  was  testified  to  be  the  usual  track  for  her  in  the  then 
state  of  wind  and  tide,  and  according  to  the  pilot's  evidence, 
the  rope  was  not  seen  until  the  boat  was  too  near  to  stop.  She 
was  checked,  but  was  caught  by  the  rope,  so  as  to  produce  a 
collision,  causing  some  damage  to  the  steamboat,  and  caus- 
ing her  to  be  laid  up  for  repairs  for  two  days.  It  was  testified 
that  no  person*  was  on  the  deck  of  the  schooner  when  the  boat 
was  approaching. 

The  defendant  gave  evidence  that  Nicholas  Thompson  had 
control  and  management  of  the  schooner.  She  was  chartered 
to  him  in  shares,  and  he  was  to  victual  and  man  her  ;  that  de- 
fendant had  nothing  to  do  with  her  navigation.  The  schooner 
was,  at  the  time,  carrying  brick  for  one  Henry  Belfair,  under  a 
contract  made  by  defendant  himself.  Thompson  had  the  priv- 
ilege, if  he  did  not  like  the  brick  trade,  to  go  into  any  other 
he  thought  more  profitable.  The  defendant  paid  the  wharfage, 
while  Thompson  paid  all  other  expenses,  and  he  and  defendant 
had  a  settlement  every  two  trips.  On  these  facts  the  justice 
rendered  a  judgment  for  the  plaintiff  for  one  hundred  and  fifty- 
one  dollars  and  thirty-seven  cents,  from  which  the  defendant 
appealed. 

Wm.  J.  Haskett,  for  appellant. 
O.  P.  Andrews,  for  respondent.   ' 


501  COURT  OF  COMMON  PLEAS. 

Annett  v.  Foster. 

BY  THE  COURT. — DALY,  F.  J. — The  evidence  introduced  by 
the  plaintiff  made  out  a  clear  case  of  the  absence  of  any  negli- 
gence on  the  part  of  those  in  charge  of  the  steamboat.  It  was 
in  conflict  with  the  testimony  produced  by  the  plaintiff  to  es- 
tablish co-operating  negligence,  and  the  justice  having  found  in 
favor  of  the  plaintiff,  his  decision  upon  all  facts  which  were  in 
conflict  is  final,  and  will  not  be  reviewed. 

The  steamboat  was  not  out  of  her  course.  There  was  ample 
space  for  her  to  pass  between  the  schooner  and  the  dock.  She 
had  several  times  before  gone  as  close  to  the  dock,  and  she  did 
so  on  this  occasion  to  keep  fair  with  the  wind  and  to  increase 
her  speed.  It  was,  according  to  the  testimony  of  the  pilot,  the 
usual  and  accustomed  course,  as  the  wind  and  tide  then  were. 
It  was  an  act  of  negligence  to  have  the  schooner  lying  in 
the  river  from  three  to  four  hundred  yards  from  the  bulkhead, 
with  her  line  attached  to  the  bulkhead,  for  as  the  line  was  sunk 
in  the  water,  there  was  nothing  to  indicate  that  there  was  any- 
thing to  obstruct  the  free  passage  of  vessels  in  the  open  space 
between  the  schooner  and  the  wharf.  If  the  position  had  be- 
come necessary  in  consequence  of  the  high  state  of  the  wind 
and  the  dragging  of  the  schooner's  anchor,  she  should  have 
had  some  person  upon  the  look-out,  either  to  slacl^nthe  line  or 
to  warn  vessels  approaching  not  to  pass  between  her  and  the 
bulkhead.  As  the  line  which  connected  her  with  the  wharf 
was  beneath  the  water,  it  would  naturally  be  supposed,  as  was 
the  case  in  this  instance,  that  she  was  lying  at  anchor,  and  .to 
continue  lying  there,  in  a  river  like  the  Hudson,  where  steam- 
boats and  vessels  of  every  description  are  constantly  passing, 
without  resorting  to  any  means  to  indicate  that  there  was  an 
obstruction  to  vessels  passing  between  her  and  the  wharf,  or 
providing  any  way  to  guard  against  the  occurrence  of  such  an 
accident  as  took  place,  was  an  act  of  negligence. 

The  agreement  which  subsisted  between  the  defendant  and 
the  master  of  the  schooner  was  not  of  such  a  character  as  to 
constitute  the  latter  owner  of  the  vessel  pro  hac  vice.  The 
schooner  belonged  to  the  defendant,  and  he  made  a  contract 
with  one  Belfair  to  carry  brick  for  a  stipulated  sum  per  thou- 
sand, in  which  service  the  vessel  had  been  employed  for  some 
time  when  the  accident  occurred.  The  defendant  collected 
the  freight  for  the  carriage  of  the  bricks  from  Belfair,  giving 


NEW  YORK— NOVEMBER,   1865.  505 


Annett  v.  Foster. 


one-half  of  it  to  the  master  and  retaining  the  other  *haif  him- 
self. The  master,  out  of  his  half,  victualed  the  vessel,  hired 
and  paid  the  men,  and  had  exclusive  charge  of  the  navigation  ; 
and  the  defendant,  out  of  his  half,  paid  the  wharfage.  The 
wear  and  tear  and  painting  were  also,  it  would  seem,  paid  out 
of  the  captain's  share.  A  settlement  was  made  at  the  close  of 
every  second  trip,  and  the  captain,  if  he  did  not  like  the  brick 
trade,  had  the  privilege  to  go  into  any  other  he  thought  more 
profitable. 

There  was  not  such  a  parting  by  the  defendant  with  the  con- 
trol and  management  of  the  schooner  and  of  her  earnings  as 
would  make  Thompson,  the  captain,  the  temporary  owner. 
The  defendant  was  the  owner  and  the  freighter.  He  made  the 
contract  with  JBelfair  for  the  carriage  of  the  brick,  collected 
the  freight,  and  he  alone  was  entitled  to  receive  it  in  the  first 
instance.  He  would  be  answerable  to  Belfair  in  the  event  of 
a  failure  to  deliver  the  bricks  pursuant  to  the  contract;  all  of 
which  are  determining  circumstances  to  show  that  he  had  not 
so  divested  himself  of  the  control  and  management  of  the  vessel 
and  of  her  earnings,  as  to  vest  in  another  the  rights  and  respon- 
sibilities of  ownership,  for  the  time  being.  "  It'  a  case  should 
occur,"  said  Lord,  TENTERDEN,  in  his  work  upon  shipping  (p.  57, 
8th  Lond.  ed.),  "  of  an  injury  done  by  the  negligent  or  unskill- 
ful management  of  a  ship,  the  possession  and  control  of  which 
had  so  completely  passed  to  the  charterer  that  he  appointed 
the  master  and  crew,  and  directed  not  only  her  destination  and 
.employment,  but  the  mode  of  her  navigation,  then,  probably 
he,  and  not  the  absolute  owner,  would  be  held  responsible 
for  the  misfortune."  But  this  is  not  such  a  case.  Here  the 
master  of  a  vessel  is  selected  by  the  defendant,  between  whom 
and  the  master  an  agreement  is  made  to  run  her  upon  shares, 
but  the  defendant  contracts  for  her  employment,  and  receives 
the  freight,  which  he  divides  with  the  master,  each  of  them 
bearing  a  certain  proportion  of  the  expenses  of  running  the 
vessel.  In  the  well-considered  case  of  Newberry  v.  Colvin 
(T(Bing.,  190  ;  1  Clark  &  Fin.,  283),  which  in  some  respects 
resembled  this,  the  owner  had  no  immediate  interest  in  the 
freight  earned,  but  the  whole  surplus  went  to  the  master,  who 
had  agreed  to  pay  for  the  time  and  use  of  the  ehip,  whether 
any  freight  waa  earned  or  not,  a  stipulated  sum,  to  be  com- 


506  COURT    OF    COMMON    PLEAS. 

Annett  v.  Foster. 

puted  according  to  the  tonnage  of  the  vessel,  which  was  aeon- 
trolling  circumstance  to  show  that  the  vessel  was  in  the  em- 
ployment of  the  master,  and  not  of  the  owner.  The  same  fea- 
ture distinguishes  the  case  of  Thompson  v.  Snow  (4  Greenl., 
264),  in  which  the  vessel  was  let  to  the  master  on  shares,  he 
victualing  and  manning  her,  paying  a  portion  of  the  port 
charges,  and  yielding  to  the  owners  for  her  hire,  a  certain  share 
of  the  net  earnings  ;  but  in  which  he  had  the  right  to  employ 
the  vessel  as  he  pleased.  In  Lyman  v.  Jtodman  (10  Shep.,  28), 
it  is  said  that  the  taking  of  the  vessel  by  the  master,  his  victual- 
ing and  manning  her,  paying  a  portion  of  the  port  charges,  and 
having  a  share  of  the  profits,  do  not  of  themselves  constitute 
him  the  owner  pro  hac  vice  ;  that  it  is  the  entire  control  and 
direction  of  the  vessel  which  he  lias  the  power  to  assert,  and 
the  surrender  by  the  owner  of  all  power  over  her  for  the  time 
being,  which  will  exonerate  the  owner  from  liability.  Such 
was  the  case  of  Webb  v.  Pierce  (1  Curt.  0.  C.  R.,  104),  in 
which  the  master  hired  the  vessel  upon  shares,  under  an  agree- 
ment to  victual  and  man  her,  and  employ  her  in  such  voyages 
as  he  thought  best.  In  Jones  v.  Blinn  (2  Rich.,  475),  it  was 
held  that  the  owner  is  liable,  the  presumption  being  that  the 
vessel  is  navigated  for  his  benefit ;  but  where  it  is  clearly 
proved  that  he  has  no  interest  in  the  freight,  and  that  she  is 
navigated  under  the  entire  control,  as  well  as  for  the  exclusive 
benefit,  of  a  third  person,  such  person  is  pro  hoc  vice  the 
owner  ;  and  in  Arthur  v.  The  Schooner  Cassius  (2  Story,  81), 
where  the  vessel  was  chartered  by  the  master  as  owner  for  a 
certain  voyage,  and  by  the  terms  of  the  charter  party  the  gen- 
eral owners  were  to  share  the  freight  with  the  master,  it  was 
held  that  the  general  owners  were  liable  as  owners  for  the 
voyage.  These  authorities  are  decisive  upon  the  point  raised. 
The  defendant,  it  is  true,  testified  that  Thompson  had  the  priv- 
ilege if  he  did  not  like  the  brick  trade  to  go  into  any  other  that 
he  thought  more  profitable  ;  but  however  that  may  have  been, 
or  whatever  may  be  the  exact  meaning  of  this  testimony,  which 
is  somewhat  loose,  the  defendant,  at  the  time  of  the  accident 
and  for  some  time  before,  had  contracted  for  the  employment 
of  the  vessel,  und  had  received  and  shared  in  the  freight,  and 
the  fact  that  she  was  then  employed  in  an  enterprise  the  earn- 
ings of  which  were  received  by  the  defendant,  and  proportion- 


NEW  YOKK— NOVEMBER,  1865.  50T 


Annett  v.  Foster. 


ably  divided  between  him  and  Thompson,  is  sufficient  to  fix 
the  defendant's  liability  (Jones  v.  /Sims,  6  Port.,  138). 

The  defendant  selected  the  master,  and  if  he  were  a  negligent, 
unskillful,  or  incompetent  officer,  he  had  the  right  to  discharge 
him,  notwithstanding  the  agreement  which  existed  between 
them.  Whether  he  engaged  him  at  a  stipulated  sum,  or  made 
an  agreement  with  him  to  run  the  vessel  upon  shares,  did  not 
alter  their  respective  relations  in  this  particular,  unless  the  de- 
fendant had  given  up  to  him,  which  he  did  not,  all  control  of 
the  vessel,  and  of  her  employment,  and  all  immediate  or  direct 
interest  in  the  freight  earned  by  her.  On  the  contrary,  he  re- 
tained and  exercised  the  right  to  contract  for  her  employment, 
so  that  the  relation  of  master  and  servant  was  not  severed 
between  them.  As  respects  third  persons  who  might  sustain 
injury  from  the  unskillful  or  negligent  management  of  the  ves- 
sel, he  stood  in  the  relation  of  owner,  and  Thompson  in  that 
of  master ;  and  it  is  well  settled  that  an  owner  is,  under  such 
circumstances,  responsible  for  an  injury  arising  from  the  neg- 
ligence or  want  of  skill  of  those  who  are  entrusted  with  the 
management  of  the  vessel  (Duser  v.  Murgatroyd,  1  Wash.  C. 
C.  R.,  13  ;  Stone  v.  Keatland,  ib.,  142  ;  The,  Rebecca,  Ware's 
K.,  188 ;  Abbott  on  Shipping,  228,  8th  Lond.  ed.). 

The  judgment  of  the  justice  must  be  affirmed,  but  as  tho 
question  is  an  important  one,  and  as  both  parties  consent,  the 
case,  if  desired,  may  be  taken  to  the  Court  of  Appeals. 

Judgment  affirmed. 


508  COURT  OF  COMMON  PLEAS. 


Smith  v.  Butler. 


SAMUEL  SMITH  and  ANDREW  W.  SMITH  v.  BENJAMIN  F.  BUTLER. 

Actions  to  recover  compensation  for  injuries  done  to  personal  property  may 
be  maintained  wherever  jurisdiction  of  the  parties  can  be  obtained.  In 
such  cases  the  venue  is  transitory.  The  ruling  in  Molony  v.  Dows  (8  Abbott's 
Pr.  R,  316),  distinguished  from  the  present  case. 

APPEAL  by  the  defendant  from  a  judgment  at  Special  Term 
overruling  a  demurrer  to  the  complaint. 

The  complaint  alleged  that  the  plaintiffs  were  copartners  in 
New  Orleans  on  the  27th  of  May,  1862,  and  were  then  lawfully 
carrying  on  their  business,  &c.  That  on  that  day,  in  the  city 
of  New  Orleans,  the  defendant,  General  Butler,  unlawfully, 
with  force  of  arms,  with  a  multitude  of  people,  surrounded  the 
premises  of  the  plaintiff,  and  took  possession  of  their  place  of  bus- 
iness, and  removed  their  property  from  said  premises,  and  took 
the  same  into  his  possession,  and  had  converted  a  portion  of  the 
funds  of  their  firm.  That  thereby  their  business  was  broken  up, 
to  their  great  loss  and  damage,  &c. 

The  defendant  demurred  to  the  complaint  on  the  ground 
that  the  court  bad  no  jurisdiction  of  the  subject  of  the  action, 
and  that  the  complaint  did  not  state  facts  sufficient  to  constitute 
a  cause  of  action. 

The  Court'  overruled  the  demurrer,  and  the  defendant  ap- 
pealed. 

John  K.  Hackett)  for  appellant. 

Stanley,  Langdell  and  Jfrown,  for  respondent. 

BY  THE  COURT. — CARDOZO,  J. — The  question  presented  in  this 
case  was  carefully  considered, and  the  authorities  reviewed  by 
Mr.  Justice  MONELL  in  the  case  of  Mclvor  v.  McCabe,  (26 
How.  Pr.  R.,  257)  and  I  concur  with  the  views  there  expressed. 

It  may  not  however,  be  necessary  on  the  present  occasion, 
to  review  or  deny  the  doctrine  of  Molony  v.  Dows  (8  Abbott's 
Pr.  R.,  316),  which  was  only  a  nisi  prius  case,  but  of  course 
entitled  to  great  respect  as  the  ruling  of  a  very  learned  and 
experienced  Judge, — because  that  case  concedes  that  several 


NEW   YOBK— NOVEMBER,   1865.  509 


Cannavan  v.  Conklin. 


cases  in  this  country  "  authorize  the  conclusion  that  actions  to 
recover  compensation  for  injury  done  to  personal  property  " 
(which  is  the  present  case),  may  be  maintained  wherever  juris- 
diction of  the  parties  can  be  obtained.  In  other  words,  that 
in  such  cases  the  venue  is  transitory.  This  is  unquestionably 
the  rule.  (1  Chitty's  Pleadings,  243;  Com.  Dig.  N.,  12  and 
Trover,  7  ;  Glen  v.  Hodges,  9  Johns.,  67,  69  ;  Smith  on  Actions 
at  Law,  78.  Kerr  on  Actions  at  Law,  206.  See  also  Harriott 
v.  New  Jersey  Transportation  Co.,  2  Hilt.,  262.) 
The  judgment  should  be  affirmed  with  costs. 

Judgment  affirmed. 


GERALD  CANNAVAN  v.  EDWARD  E.  CONKLIN,  CHARLES  SCHOLET 
cmd  JAMES  SHINDLEK,  impleaded  with  HERMAN  HESDORF. 

A  party  in  the  actual  possession  of  a  city  pier  is  responsible  in  damages  for 
injuries  arising  from  its  bad  condition,  irrespective  of  the  question  of  owner- 
ship ;  and  in  suits  for  such  damages,  the  possession  of  the  defendant  being 
shown,  the  question  of  title  does  not  arise. 

An  agreement  between  A.  and  B.,  joint  possessors  of  a  pier,  that  ft.  shall  keep 
it  in  good  repair  is  no  defence  to  an  action  against  A.  by  a  third  party  to  re- 
cover damages  for  an  injury  arising  from  its  defective  condition. 

The  owners  of  a  pier  in  the  city  of  New  York  leased  it  to  a  third  party,  who 
agreed  to  keep  it  in  as  good  repair  as  it  then  was,  reserving  to  themselves 
a  right  to  use  and  occupy  as  much  of  the  pier  as  their  business  might  re- 
quire ;  and  under  this  agreement  continued  to  use  the  dock, — Held,  that  this 
was  a  joint  possession,  rendering  them  jointly  liable  with  their  lessee  for 
the  death  of  a  horse  caused  by  the  defective  condition  of  the  pier. 

APPEAL  by  the  defendants  Edward  E.  Conklin,  Charles 
Scholey  and  James  Shindler  from  the  judgment  of  the  District 
Court  of  the  Seventh  Judical  District. 

The  plaintiff  brought  suit  against  the  defendants  for  the  loss 


510  COUKT  OF  COMMON  PLEAS. 

^  Cannavan  v.  Conklin. 

of  a  horse  by  falling  through  a  pier  at  the  foot  of  Forty-third 
street,  N.  R.,  in  the  city  of  New  York.  The  accident  occurred 
on  the  24th  November,  1864,  and  was  shown  to  have  occurred 
through  the  weakness  of  the  supporting  beams,  while  the  plank- 
ing appeared  to  be  sound.  The  appellants  put  in  evidence  an 
agreement  between  themselves  and  the  defendant  Hesdorf  leasing 
the  pier  for  seven  months  from  October  1st,  1864,  to  the  latter, 
'*  he  to  keep  the  said  dock  in  good  repair  as  it  now  is,  the  said 
"  Conklin  &  Co.  reserving  the  right  to  use  said  dock,  and  occupy 
"  as  -much  of  pier  as  their  business  may  require,  and  in  case  they 
<f  want  to  make  improvements  on  said  pier,  or  in  any  other  way 
"  occupy  the  whole  of  it,  in  that  case  they  are  to  pay  back,"  &c. 

The  appellants  gave  evidence  on  the  trial  below  to  show 
that  they  had  not  afterwards  occupied  the  dock.  On  the  part 
of  the  plaintiff  it  was  shown  that  the  pier  was  used  by  the  firm 
of  Conklin  &  Co.  for  the  receipt  of  coal  and  ice,  and,  that  they 
had  scales  on  the  dock,  which  remained  there  down  to  the  time  of 
the  accident,  and  were  used  but  a  little  while  before  by  them. 

The  District  Court  rendered  a  judgment  in  favor  of  the  plain- 
tiff for  the  value  of  the  horse,  against  all  defendants.  The  de- 
fendants Conklin  &  Co.  appealed. 

Titus  JB.  Eldridge,  for  appellants. 
Alexander  H.  Reavey,  for  respondent. 

BY  THE  COUKT. — CAKDOZO,  J. — The  case  presents  only  one 
question  worthy  of  consideration. 

The  action  in  the  court  below  was  to  recover  for  the  loss  of  a 
horse,  which  was  killed  on  the  24th  of  November,  1864,  by  fall- 
ing through  the  pier  at  the  foot  of  43d  street,  on  the  North 
River. 

The  death  of  the  horse,  its  value,  and  that  the  loss  happened 
by  reason  of  the  negligence  of  the  persons  in  possession  of  the 
pier  in  suffering  it  to  be  in  a  dangerous  and  insecure  condition, 
are  sufficiently  proven.  The  question  is  whether  the  appellants 
occupied  that  relation  to  the  pier  when  the  accident  occurred 
as  to  make  them  responsible  for  it. 

On  the  first  of  October,  18G4,  the  appellants  entered  into  an 
agreement  with  their  co-defendant  Hesdorf,  by  which  they 
let  unto  him  "  their  pier  at  the  foot  of  43d  street,  North  River, 


NEW  TOEK— NOVEMBER,  1865.  511 


Cannavan  v.  Couklin. 


for  the  term  of  seven  months  from  1st  day  of  October  inst.  to 
May  1st,  1865,  *  *  *  *  reserving  to  themselves  the  right  to 
use  the  said  dock,  and  occupy  as  much  of  the  pier  as  their 
business  may  require." 

The  proof  establishes  that  the  appellants,  before  the  makino- 
of  the  lease,  had  erected  upon  the  pier  a  pair  of  scales  for  the 
purpose  of  weighing  ice  and  coal,  and  that  both  before  and 
after  the  making  of  the  lease  the  appellants  used  the  pier  and 
the  scales  which  they  had  so  erected.  They  were,  therefore, 
after  the  making  of  the  lease,  while  such  use  continued,  in  the 
possession  of  the  pier  jointly  with  the  defendant  Hesdorf.  In- 
deed the  only  one  of  the  appellants  who  was  examined  on 
the  trial  did  not  attempt  to  deny  their  possession  and  use  of  the 
pier  down  to  November  1st.  The  dispute  is  whether  the  pos- 
session of  the  appellants  then  ceased  or  continued  and  existed 
at  the  time  of  the  loss.  The  accident  happened  on  that  part 
of  the  pier  which  has  been  used  by  the  appellants.  If  the  ap- 
pellants were  in  possession  of  the  pier  when  the  accident  oc- 
curred, they  are  clearly  liable,  irrespective  of  ownership.  The 
agreement  that  Hesdorf  should  keep  the  pier  in  as  good  con- 
dition as  it  was  when  the  lease  was  made  does  not  affect  the 
case.  In  the  first  place  Hesdorf  was  only  to  keep  it  in  as  good 
condition  as  it  was  at  the  time  the  lease  was  made,  and  the 
pooof  shows  that  it  was  in  bad  condition  at  that  time,  and  so 
continued. 

Hesdorf  was  not  to  put  the  pier  in  good  order,  but  to  keep 
it  in  the  same  condition  that  it  was  in  when  the  lease  was 
made  ;  and  it  does  not  appear  that  it  was  in  any  worse  state 
when  the  accident  happened,  than  it  was  in  when  the  lease  was 
taken.  However  this  may  be,  the  undertaking  of  Hesdorf  in 
that  respect  is  a  matter  solely  between  him  and  the  appellants, 
and  cannot  relieve  the  latter  from  their  liability  (growing  out 
of  their  possession)  to  strangers.  It  may  give  them  a  claim  for 
redress  against  Hesdorf,  but  that  question  does  not  arise  here. 

Hahn,  a  witness  for  the  plaintiff,  testified  that  on  the 
twenty  -eighth  of  November,  1864,  which  was  after  the  acci- 
dent, he  had  a  load  of  coal  carted  from  that  pier  to  his  yard  ; 
and  John  Wood,  wlio  weighed  that  coal,  swore  that  it  had  been 
weighed  with  the  scales  which  the  appellants  had  erected. 
William  Duane,  another  witness  for  the  plaintiff,  stated  that  nt 


512  COURT  OF  COMMON  PLEAS. 

Derrick  v.  Catley. 

and  after  the  accident  these  scales,  with  which  he  had  seen  the 
appellants  weigh  ice,  were  yet  on  the  pier.  This  was  some  ev- 
idence to  show  that  the  appellants  then  continued  in  possession 
of  the  pier,  and  if  it  be  said,  that  there  was  a  conflict  of  testi- 
mony upon  the  point  of  possession,  because  one  of  the  appel- 
lants swore  that  he  "  thought  the  scales  had  been  removed 
about  the  first  of  November,"  that  presented  a  question  of  fact 
upon  which  the  justice's  finding  is  conclusive.  Besides,  al- 
though one  of  the  appellants  swore  that  they  had  sold  the  pier, 
and  had  delivered  a  written  conveyance  of  it,  they  did  not  pro- 
duce the  instrument,  nor  disclose  its  terms,  nor  did  he  swear 
that  by  the  conveyance  they  had  transferred  anything  except 
the  title  to  the  pier,  and  for  aught  that  was  shown,  the  appel- 
lants may  not  have  parted  with  the  right  to  use  the  pier, 
which  they  reserved  by  the  agreement  with  Hesdorf.  In  the 
absence  of  such  proof,  I  think  that  the  justice  was  justified  in 
concluding  that  the  appellants  were  in  possession  of  the  pier 
when -the  accident  occurred,  and  if  that  be  so,  the  question  of 
title  to  the  pier  becomes  immaterial,  even  if  the  appellants 
were  in  a  position  to  raise  that  point.  But  they  are  not.  They 
did  not  set  up  any  such  defence  by  way  of  answer,  nor  give 
the  undertaking  required  by  §  56  of  the  Code,  and  therefore 
under  §  58,  they  are  precluded  from  raising  the  question  of 
title  to  the  premises. 
-  I  think  the  judgment  should  be  affirmed  with  costs. 

Judgment  affirmed. 


ASAHEL  K.  HEKEICK  v.  ALFRED  CATLEY. 

An  attorney  cannot  serve,  professionally,  both  parties  to  a  controversy,  and 
where  he  has  been  retained  by  one,  he  cannot  recover  for  professional  serv- 
ices rendered  in  the  same  matter  to  the  other. 

APPEAL  by  the  defendant  from  a  judgment  of  the  Eighth  Dis- 
trict Court 


NEW  TOEK— NOVEMBER,  1865.  513 

Herrick  v.  Catlcy. 
The  facts  are  fully  stated  in  ftie  opinion  of  the  Court 

Thomas  G.  Swartwout,  for  appellant , 
Robert  A.  Adams ',  for  respondent. 

BY  THE  COURT. — DALY,  F.  J. — The  plaintiff  testified  that 
he  was  employed  by  the  defendant's  wife  to  procure  a  di- 
vorce for  her  from  the  defendant,  and  that  he  called  upon  the 
defendant  and  ••  had  a  long  interview  with  him.  The  plaintiff 
did  not  state  for  what  purpose  he  called  upon  the  defendant, 
or  what  the  interview  between  them  had  reference  to.  He 
testified  that  he  called  upon'  the  defendant  again,  and  that 
the  defendant  requested  him  to  call  upon  Mi's.  Catley,  and  see 
if  he  could  not  effect  an  adjustment  of  the  'difiiculties  between 
them ;  to  try  and  settle,  and  report  the  result  to  him.  That  he 
accordingly  called  upon  her,  and  reported  to  the  defendant  what 
he  had  done,  who  requested  him  to  see  her  again  ;  that  he  did 
so ;  that  the  defendant  then  asked  him  to  procure  an  interview 
for  him  with  her,  and  that  he  succeeded  in  bringing  one  about 
That  they  met,  and  that  the  matters  in  difference  were  settled, 
and  an  agreement  made  that  they  should  be  reconciled.  That 
he  told  the  defendant  that  his  services  were  of  a  professional 
nature,  and  he  testified  that  they  were  worth  one  hundred  dol- 
lars. 

The  defendant  testified  that  the  plaintiff  called  upon  him, 
and  said  he  had  come  at  the  instance  of  his  wife,  to  see  if  a  re- 
conciliation could  not  be  effected  between  them  ;  that,  at  the 
plaintiff's  request,  he  consented  to  see  his  wife ;  that  an  inter- 
view took  place,  and  that  instead  of  a  reconciliation  being 
effected,  the  gap  between  them  was  widened ;  that  they  con- 
tinued to,  and  still  live  apart,  and  that  he  furnishes  his  wife 
with  a  separate  maintenance  suitable  to  her  condition.  lie  fur- 
ther testified  that  when  applied  to  by  the  plaintiff,  he  told  him 
that  it  was  of  no  use  for  him  to  see  his  wife,  as  it  was  impossible 
that  any  reconciliation  could  be  had  between  them ;  that  he 
never  employed  the  plaintiff,  or  requested  him  to  render  any 
service  ;  that  he  did  not  seek,  nor  give  his  consent  to  any  servi- 
ces rendered  by  the  plaintiff.  The  justice  gave  judgment  for 
the  plaintiff  for  one  hundred  dollars.  . 

Assuming  that  it  was  for  the  justice  to  determine  upon  this 
contradictory  evidence,  which  of  the  two,  plaintiff  or  defendant 
33 


514  COURT  OF  COMMON  PLEAS. 

Herrick  v.  Catley. 

he  would  believe,  and  that  in  support  of  his  judgment,  we  must  as- 
sume that  he  believed  the  facts  to  be  as  stated  by  the  plaintiff, 
the  question  is  then  presented,  whether,  upon  such  a  state  of 
facts,  the  plaintiff  had  a  cause  of  action. 

While  the  relation  of  attorney  and  client  continued  between 
the  plaintiff  and  the  defendant's  wife,  he  could  not  enter  into  an 
agreement  to  act  also  as  the  attorney  of  the  husband  in  a  mat- 
ter so  directly  connected  with  the  subject  of  his  employment  as 
that  of  effecting  a  reconciliation,  and  settling  the  matter  in  dif- 
ficulty between  them.  He  had  been  employed  by  the  wife  to  pro- 
cure a  separation,  and  could  not,  therefore,  engage  to  act  for  the  hus- 
band as  his  attorney  in  preventing  it.  In  other  words,  he  could 
not  act  on  both  side*  An  attorney,  said  Chief  Justice  HOBAET, 
oweth  to  his  client  fidelity,  secrecy,  diligence  and  skill,  and  cannot 
take  a  reward  on  the  other  side  (  Yardly  v.  Ellill,  Hobart  Rep.,  8 
a ;  Tomlin's  Dictionary,  Attorney  ;  and  in  Shire  v.  King,  Telv. 
R.,  32 ;  King  v.  Shore,  Cro.  Eliz.,  914),  it  was  held  that  he  cannot 
deal  upon  both  sides  except  as  an  arbitrator.  The  defendant  did  not 
say  that  he  would  pay  him  anything  for  bringing  about  a  meet- 
ing between  him  and  his  wife,  and  his  obligation  to  do  so  is  im- 
plied from  the  fact  that  he  requested  the  plaintiff  to  call  upon 
Mrs.  Catley,  and  see  if  he  could  not  effect  an  adjustment  of  the 
difficulties  between  them,  and  that  the  plaintiff  told,  him  that  his 
services  were  of  a  professional  nature.  They  could  not  be  in 
the  nature  of  professional  services  for  the  defendant,  while  the 
relation  of  attorney  and  client  subsisted  between  the  plaintiff 
and  Mrs.  Catley,  and  he  could  not  be  entitled  to  recover  for  ser- 
vices rendered  as  arbitrator,  for  nothing  was  submitted  to  his 
decision  or  arbitrament.  The  judgment  should  be  reversed. 

Judgment  reversed. 


XEW   YORK— NOVEMBER,  1865.  515 


Wells  v.  Cox. 


THOMAS  W.  WELLS  v.  JOHN  Cox. 

Where  there  is  only  one  issue,  and  the  intention  of  the  jury  to  find  for  the 
plaintiff  is  manifest,  the  Court  will,  in  case  of  a  mistake  by  them,  correct 
their  verdict  by  making  it  conform  to  their  finding,  and  give  judgment  upon 
it  accordingly. 

On  the  trial,  the  Court  charged  the  jury  that  if  their  finding  was  in  favor  of 
the  plaintiff,  the  amount  due  him  was  six  hundred  and  sixteen  dollars  and 
twenty-nine  cents.  The  jury  found  for  the  plaintiff,  but  forgetting  the 
amount  given  by  the  Court,  returned  a  sealed  verdict  for  the  plaintiff  "  for 
the  whole  amount  claimed  and  interest," — Held,  that,  the  Court  could,  on 
motion,  correct  the  verdict  by  inserting  in  it  the  sum  stated  in  the  charge. 

APPEAL  from  an  order  at  Special  Term. 

The  judge  on  the  trial  charged  the  jury  that  a  certain  amount, 
if  anything,  was  due  to  the  plaintiff,  being  the  amount  of  the 
draft  on  which  suit  was  brought  with  interest  and  protest  fees, 
and  that  if  they  found  for  the  plaintiff,  they  should  find  for  him 
for  that  amount.  The  jury  agreed  upon  a  verdict  for  the  plain- 
tiff, but  being  uncertain  as  to  the  exact  amount  stated  by  the 
Court,  made  out  a  sealed  verdict  "  for  the  plaintiff  for  the  full 
amount  claimed  and  interest  ;"  supposing,  according  to  an  affida- 
vit of  all  the  jurors  read  on  the  motion,  that  the  correct  amount 
would  be  inserted  at  the  opening  of  the  Court  on  receipt  of  their 
\erdict. 

On  the  affidavit  of  the  jurors  to  this  effect  the  Court  granted 
an  order  to  show  cause  why  the  verdict  should  not  be  amended 
by  substituting  for  the  words  "  the  whole  amount  claimed  with 
interest,'1  the  words,  "  the  sum  of  six  hundred  and  sixteen  dol- 
lars and  twenty-nine  cents  ;"  and  after  hearing  counsel,  entered 
an  order  to  that  effect,  and  directed  judgment  to  be  entered 

on  the  verdict  as  amended. 

• 

From  this  order  the  defendant  appealed. 

C.  Bairibwlge  Smith,  for  appellant. 
Wm.  R.  Stafford,  for  respondent. 


516  COURT  OF  COMMON  PLEAS. 

Wells  v.  Cox. 

BY  THE  COURT. — BRADY,  J. — In  submitting  this  case  to  the 
jury  the  presiding  judge  stated  to  them  the  amount  the  plain- 
tiff was  entitled  to  recover,  if  their  finding  was  in  his  favor. 
They  agreed  upon  a  verdict  in  favor  of  the  plaintiff,  but  were 
uncertain  as  to  the  amount  stated  by  the  judge  in  his  charge. 
The  uncertainty  was  whether  the  sum  of  six  hundred  and  six- 
teen, or  six  hundred  and  seventeen  dollars,  or  thereabouts,  was 
the  amount.  They  found  generally  therefore,  for  the  plaintiff 
for  the  full  amount  claimed,  and  the  interest.  On  an  application 
made  to  the  judge  after  the  jury  had  been  discharged,  an-  order 
was  made  amending  the  verdict,  so  that  it  should  read  as  fol- 
lows, u  verdict  for  the  plaintiff  for  the  sum  of  six  hundred  and 
sixteen  dollars  and  twenty-nine  cents,"  that  being  the  sum 
which  the  judge  instructed  them  was  the  extent  of  the  plain- 
tiff's claim.  There  was  but  one  issue  in  the  action,  and  the 
verdict,  therefore,  covered  the  whole  subject  in  controversy. 
The  intention  of  the  jury  was  to  find  a  verdict  for  the  amount 
stated  by  the  judge,  and  they  have  so  deposed.  The  intention 
being  manifest,  and  the  case  upon  the  application  to  amend 
being  clear,  the  Court  had  the  power  to  give  judgment  upon 
the  substantial  finding  of  the  jury  (IlawTces  v.  Crofton,  2  Burr., 
698 ;  Rockfeller  v.  Donnelly,  8  Cow.,  652  ;  Petre  v.  Hanway, 
3  Term  Rep.,  659  ;  Chcetham.  v.  T'dlotson  4  Johns.,  508).  The 
objection  to  the  amendment  is  technical,  and  is  not  sustained 
by  any  element  which  called  upon  the  Court  to  hesitate  to  ex- 
ercise the  power  of  making  the  verdict  in  language  conform 
to  the  finding  of  the  jury.  There  is  no  doubt  that  the  whole 
case  has  been  disposed  of  by  the  jury  and  the  Court,  and  the 
amendment  should  be  allowed  (Burhans  v.  Tibbitts,  7  How. 
Pr.  Rep.,  21).  The  point  in  issue  can  be  concluded  out  of  the 
finding,  and  the  Court  will  work  the  verdict  into  form  and 
make  it  serve  (Foster  v.  Jackson,  Hobart,  54,  a).  The  order 
appealed  from  should  be  affirmed  with  ten  dollars  costs. 

3rder  affirmed. 


NEW  YORK— NOVEMBER,    1865.  517 


James  v.  Hagar. 


HENRY  JAMES  v.  FREDERICK  L.  HAGAR  and  HENRY  RAHARGE. 

A  written  agreement  to  pay  money  provided  the  payee  shall  do  a  certain 
thing,  is  not  negotiable  paper,  and  is  subject,  in  the  hands  of  a  third  person, 
to  all  defences  valid  against  it  in  the  hands  of  the  original  payee. 

A  mariner,  who  is  in  a  vessel  when  she  commences  her  voyage,  but  who  leaves 
her  while  she  is  temporarily  stayed  in  the  harbor  by  accident,  head  winds  or 
other  causes,  before  she  reaches  the  main  ocean,  has  not "  proceeded  to  sea," 
in  the  sense  in  which  that  term  is  to  be  understood  in  an  agreement  for  the 
payment  of  money  upon  that  condition. 

"Where  it  was  agreed  that  money  should  be  paid  to  a  seaman  as  soon  as  he 
should  proceed  to  sea  agreeably  to  the  shipping  articles,  and  the  ship  started, 
but  before  leaving  the  harbor,  was  compelled  by  accident  to  return, — Held, 
in  the  absence  of  proof  of  the  contents  of  the  shipping  articles,  that  the 
condition  of  the  agreement  was  unfulfilled,  and  there  could  be  no  recovery 
on  it. 

APPEAL  by  the  defendant  from  the  judgment  of  the  First 
District  Court. 

The  action  was  brought  upon  an  instrument  described  in  the 
complaint  as  a  promissory  note  of  the  following  form. 

"  New  York,  July  23, 1864. 

"  We  promise  to  pay  to  Lansing  Fogarty,  or  order,  the  sum 
"  of  twenty  dollars,  provided  he  proceed  to  sea  in  the  schooner 
"  Mary  S.  Tibbitts,  agreeable  to  the  shipping  articles  he  has 
"  signed,  as  cook.  HAGAR  &  Co., 

"  $20.00.  56  West  St." 

— which  was  endorsed  over  to  the  plaintiff. 

The  plaintiff's  assignor,  Fogarty,  shipped  as  cook  on  board 
the  schooner,  and  went  on  board  the  23d  of  July,  remaining 
fourteen  or  fifteen  daj's,  his  pay  to  commence  from  July  23d. 
He  testified  that  he  was  to  receive  twenty-five  dollars  advance, 
and  got  five  dollars,  and  the  above  note,  which  he  sold  for 
eighteen  dollars  to  the  plaintiff.  The  schooner  started,  but 
when  opposite  Governor's  Island  collided  with  another  vessel 
and  returned  to  Jersey  City  to  be  repaired.  Shortly  after, 
Fogarty  was  taken  sick,  and  left  the  schooner  in  consequence, 
not  mitking  the  voyage  in  her.  The  testimony  of  the  master 
and  mate  of  the  schooner,  taken  on  commission,  was  read,  but 
the  shipping  articles  were  not  produced. 

One  of  the  defendants  testified  that  they  were  shipping  mas- 


518  COURT  OF  COMMON  PLEAS. 

James  v.  Hagar. 

ters.  That  Fogarty  did  not  proceed  to  sea  according  to  the 
shipping  articles ;  and  that  the  custom  of  this  port  is  to  pay  the 
money  on  these  due  bills  as  soon  as  the  vessel  proceeds  to  sea, 
that  is,  as  soon  as  the  pilot  leaves  the  vessel  in  case  she  is  a 
seagoing  vessel,  and  after  sHe  has  been  out  three  days,  in  the 
cas-e  of  a  coasting  vessel.  • 

The  judge  rendered  judgment  for  the  plaintiff  for  twenty-five 
dollars,  from  which  the  defendants  appealed.  . 

It.  P.  Lee,  for  the  appellants. 
John  Laiiktrce,  for  the  respondent. 

BY  THE  COURT.— DALY,  F.  J. — The  defendants  are  shipping 
masters,  whose  business  it  is  to  procure  seamen  for  vessels.  They 
procured  Fogarty,  the  plaintiff's  assignor,  to  go  in  the  schooner 
as  cook,  with  the  understanding  that  twenty-five  dollars  of  his 
wages  was  to  be  paid  in  advance.  Fogarty  signed  the  ship- 
ping articles,  and  the  defendants  paid  him  five  dollars  in  cash 
and  gave  him  an  agreement  in  writing  by  which  they  bound 
themselves  to  pay  to  him  or  to  his  order  the  remaining  twenty 
dollars,  provided  he  should  proceed  "  to  sea,  agreeable  to  the 
shipping  articles,"  which  agreement  Fogarty  transferred  to  the 
plaintiff.  Though  payable  to  order  it  was  not  in  the  nature  of 
a,  promissory  note  or  due  bill,  as  the  promise  to  pay  was  con 
ditional  and  not  absolute,  depending  upon  an  event  which 
might  never  happen.  The  plaintiff,  therefore,  acquired  no 
jother  or  greater  rights  under  it  than  Fogarty  possessed,  so 
that  if  Fogarty  could  not  recover  upon  it,  the  plaintiff  could 
not. 

The  vessel  it  would  seem  was  bound  to  Fortress  Monroe. 
She  left  the  wharf  at  New  York,  Fogarty  being  then  on  board, 
to  proceed  on  her  voyage,  but  in  going  down  the  bay  came  in 
collision  with  another  vessel,  which  made  it  necessary  for  her 
to  put  back  for  repairs  to  Jersey  City,  and  which  involved  a 
delay  of  several  days  before  she  could  resume  her  voyage. 
During  this  detention  Fogarty  left  the  vessel  without  the  know- 
ledge of  the  master  or  of  the  mate,  and  another  cook  had  to 
be  shipped  in  his  place.  He  testified  that  he  had  been  taken 
sick,  and  that  the  vessel  had  not  proper  sleeping  accommoda- 
tion for  him,  the  substance  of  his  testimony  being  that  he 


NEW    YORK— JANUAEY,   1866.  519 

James  v.  Hagar. 

had  been  prevented  by  illness  from  performing  his  contract, 
and  if  such  were  the  case,  he,  of  course,  had  no  claim  for  com- 
pensation under  it. 

The  defendants' promise  to  pay  depended  upon  the  fulfilment 
of  the  condition  expressed,  and  it  was  therefore  incumbent 
upon  the  plaintiff  to  show  that  Fogarty  did  proceed  to  sea 
agreeable  to  the  shipping  articles.  To  do  this  it  was  necessary 
to  show  what  was  contained  upon  that  subject  in  the  shipping 
articles,  either  by  the  production  of  the  articles  or  by  the 
proof  of  their  contents.  At  the  time  of  the  trial  they  were  in 
the  possession  of  the  captain,  who  was  at  sea ;  but  as  both  he 
and  the  mate  had  been  examined  as  witnesses,  de  bene  esse,  it 
was  in  the  plaintiff's  power  to  have  produced  this  necessary 
evidence.  This  objection  was  taken  by  the  defendants.  They 
insisted  that  the  complaint  should  be  dismissed  unless  the 
plaintiff  produced  the  shipping  articles  or  gave  some  evidence 
of  their  contents,  but  the  justice  upon  the  facts  above  stated, 
gave  judgment  for  the  plaintiff. 

In  the  absence  of  any  evidence  of  what  was  contained  in 
the  shipping  articles,  the  justice  could  not  find  that  Fogarty 
did  proceed  to  sea  agreeably  to  their  provision,  and  if  they 
contained  what  is  usual  in  such  instruments,  it  is  manifest  that 
he  did  not.  The  vessel,  within  the  meaning  of  a  contract  of 
insurance,  or  agreements  of  a  like  character,  was  at  sea  when 
the  collision  occurred,  having  actually  commenced  her  voyage 
(The  Union  Insurance  Co.  v.  Tysen,  3  Hill,  118) ;  but  a  mar- 
iner in  a  vessel  when  she  thus  commences  her  voyage  but  who 
leaves  her  while  she  is  temporarily  stayed  in  the  harbor  by  ac- 
cidents, head  winds  or  other  causes  before  she  readies  the 
main  ocean,  has  not  proceeded  to  sea  in  the  sense  in  which 
that  term  is  to  be  understood  in  such  agreement,  and  it  would 
be  as  absurd  as  it  would  be  unjust  to  say  that  Fogarty,  who 
quitted  the  ressel  in  the  harbor,  proceeded  to  sea  in  her  be- 
cause he  was  on  board  when  she  commenced  her  voyage. 

The  plaintiff  testified  that  lie  understood  that  Fogarty  pro- 
ceeded to  sea  according  to  the  custom  of  the  port.  He  does 
not  state  what  the  custom  was,  or  from  whom  or  from  what 
this  understanding  was  derived.  It  was  simply  giving  his 
understanding  or  conclusion  without  disclosing  upon  what  it 
was  founded.  The  defendant,  llagar,  on  the  contrary,  testified 


520  COURT  OF  COMMON  PLEAS. 

Cuminings  v.  Mills. 

that  the  custom  of  this  port  was  to  pay  the  money  upon  agree- 
ments of  this  kind  as  soon  as  the  vessel  proceeded  to  sea,  that 
is,  as  soon  as  the  pilot  leaves,  if  it  is  a  seagoing  vessel,  and  if  a 
coasting  vessel  afier  she  is  out  three  days.  This  wa's  clear  and 
intelligible.  It  was  a  statement  of  what  the  custom  was,  which 
the  other  was  not,  and  was  un contradicted.  It  showed  the  ex- 
istence of  a  custom  which  was  in  itself  reasonable,  in  respect 
to  which  the  parties  may  be  presumed  to  have  contracted,  and 
should  have  been  controlling. 

The  judgment  should  be  reversed. 


MOODY  CTJMMINGS  v.  SAMUEL  MILLS,  impleaded  with  GEORGE 

E.  MILLS. 

A  communion  of  loss  as  well  as  of  profits  is  essential  to  the  existence  of  a  co- 
partnership, and  in  a  case  where  two  parties  were  to  share  equally  in  the 
profits  of  an  enterprise,  but  the  expenses  were  to  be  borne  wholly  by  one, 
and  there  could,  in  no  event,  be  any  risk  of  loss  on  the  part  of  the  other, — 
Held,  that  they  were  not  partners  inter  se. 

APPEAL  by  the  plaintiff  from  a  judgment  of  the  Special  Term, 
dismissing  the  complaint. 

The  defendants  were  the  inventors  of  an  improvement  in 
machines  for  pulverizing  quartz,  for  which  they  had  obtained 
a  patent.  They  sold  to  the  plaintiff  one-fourth  of  their  interest 
in  the  patent  right,  and  an  agreement  in  the  name  of  the  three 
was  entered  into,  which  was  signed  by  the  plaintiff  and  Samuel 
Mills  only,  and  which  recited  that  it  was  mutually  agreed  that 
they  should  build  one  machine  or  more  for  the  purpose  of 
working  the  same  or  for  sale ;  that  the  plaintiff  was  to  furnish 
the  money  for  building  it,  which  was  not  to  exceed  the  sum  of 
one  thousand  dollars  ;  that  the  money  so  advanced  was  to  be 
repaid  to  him,  and  the  balance  of  the  receipts  for  the  working 
or  sale  of  the  machine  was  to  be  divided,  three-fourths  to  the 
defendants,  and  one -fourth  to  the  plaintiff;  all  profits  or 


YORK— JANUARY,  1866.  521 

Cumraings  v.  Mills. 

receipts  for  machines  to  be  manufactured,  or  for  the  sale  of 
rights  under  the  patent,  or  renewal  of  it,  or  patents  to  be  taken 
out,  were  to  be  divided  in  the>  same  manner.  Keither  party 
was  to  contract  any  debt  whereby  the  other  should  be  bound, 
except  with  the  personal  assent  of  the  party  to  be  bound,  and 
in  .case  of  the  sale  or  renewal  of  the  patent,  or  of  the  taking  out 
of  another  patent,  each  party  was  te  have  the  refusal  to  pur- 
chase the  same  at  the  rate  lonafide  offered  to  another,  and  to 
have  three  days  to  make  his  election. 

The  action  was  brought  by  the  plaintiff  to  recover  the 
amount  of  his  advances  to  the  defendants  under  the  agreement, 
and  also  to  recover  damages  for  the  conversion  of  the  machine. 

On  the  close  of  the  plaintiff's  case,  the  defendants'  counsel 
moved  to  dismiss  the  complaint,  upon  the  ground  that  the 
plaintiff  and  defendant  Mills  were  co-partners,  and  a  partner 
could  not  sue  his  co-partner  for  damages,  for  the  fraudulent 
removal  of  the  firm  property. 

The  judge  granted  the  motion,  and  ordered  the  complaint  as 
to  Samuel  Mills  to  be  dismissed.  The  plaintiff  appealed  to  the 
General  Term. 

John  A.  Godfrey^  and  B.  W.  Huntington,  for  appellant. 
Lucius  Piikin^  for  respondent. 

BY  THE  COURT. — DALY,  F.  J. — There  was  nothing  in  the 
agreement  between  the  parties  to  this  suit  creating  a  co-part- 
nership. To  constitute  a  partnership  inter  se,  there  must  be  an 
agreement  to  share  in  the  losses  as  well  as  in  the  profits,  and 
there  is  nothing  upon  the  face  of  this  agreement  from  which  it 
can  be  implied  that  the  defendants  were  to  bear  any  losses.' 
The  plaintiff  was  tp  pay  for"  the  building  of  the  machine,  for 
which  he  was  to  be  repaid  from  the  receipts  derived  by  the 
working  or  sale  of  it.  If  nothing  were  derived,  he  had  to  bear 
the  loss  incurred  by  this  outlay,  for  there  is  nothing  in  the 
agreement  showing  that  the  defendants  were  to  share  the  loss 
with  him,  or  bear  any  part  of  it.  It  was  an  agreement  by 
which  he  undertook  to  pay  all  the  expenses  of  building  a  ma- 
chine, the  earnings  of  which  were  to  be  proportionably  divided 
between  the  three,  after  he  was  repaid  the  amount  he  had  ad- 
vanced :  and  this  will  not  constitute  a  partnership  (Pattison  v. 


522  COUKT  OF  COMMON  PLEAS. 

Cummings  v.  Mills. 

Blanchard,  1  Seld.,  190 ;  Rice  v.  Austin,  17  Mass.  E.,  206 ; 
Champion  v.  Bostwick,  18  Wend.,  183,  184;  Green  v.  Becsley, 
2  Bing.  K  C.,  108  ;  3d  Kent's  Com.,  24 ;  Collyer  on  Part.,  9). 

That  no  partnership  was  created  is  conclusively  shown  by 
what  was  done  under  the  agreement.  The  machine  was  built 
at  the  expense  of  four  hundred  and  eight  dollars  and  twenty- 
six  cents.  The  defendants  worked  upon  it,  and  the  plaintiff 
paid  each  of  them  for  their  labor.  He  paid  three  hundred  and 
fifty-eight  dollars  and  twenty-six  cents,  being  the  entire  cost  of 
the  labor  and  materials  ;  to  which  were  added  fifty  dollars  for 
the  u§e  of  his  horses  and  wagons,  and  his  own  services,  making 
altogether  the  above  sum  of  four  hundred  and  eighty-six  dol- 
lars and  twenty-six  cents.  The  machine  was  then  placed  upon 
exhibition  in  a  room  on  Broadway,  the  rent  of  which,  forty-five 
dollars,  the  plaintiff  also  paid,  and  whilst  there  it  was  removed 
by  the  defendants,  who  sold  it  for  four  hundred  and  fifty  dol- 
lars, with  the  understanding  that  that  amount  was  to  be  equally 
divided  between  the  two  ;  but  Samuel  Mills,  bj  whom  it  was 
sold,  paid  his  brother  George  but  one  hundred  dollars  of  the 
amount  and  kept  the  residue.  George  Mills,  it  would  seem, 
sued  his  brother  for  his  part  of  the  machine,  and  then  went  to 
the  plaintiff,  and  asked  him  to  sue  Samuel  for  using  the  patent. 
The  plaintiff  asked  him  "  what  machine  he  was  talking  about?" 
lie  answered,  "  that  machine  of  mine  ;"  upon  which  the  plain- 
tiff said  :  "  How  came  you  to  have  anything  to  do  with  it.  I 
paid  every  cent,  I  paid  your  last  money,  and  you  said  I  owned 
everything  there  was  about  it ;"  to  which  the  other  replied  : 
"  They  all  went  in  to  rob  you,  and  I  thought  I  should  do  so 
too." 

The  plaintiff  brought  this  action  to  recover  damages  for  the 
breach  of  the  agreement.  A  motitm  was  made  to  dismiss  the 
complaint  upon  the  ground  that  the  plaintiff  and  defendants 
were  co-partners,  and  the  plaintiff's  only  remedy  was  by  a  suit 
in  equity,  which  motion  was  granted. 

If  the  agreement  had  been  that  the  defendants  were  to  be 
paid  for  their  labor  in  building  the  machine,  out  of  the  proceeds 
derived  from  the  sale  or  the  working  of  it,  then  there  would 
have  been  a  communion  of  loss  as  well  as  of  profit;  as  in  the 
event  of  the  failure  of  the  adventure,  they  would  have  had 
nothing  for  their  labor.  But,  on  the  contrary,  the  plaintiff,  in 


NEW  YORK— FEBRUARY,  1866.  523 

Jacobs  v.  Morange. 

accordance  with  the  terms  of  the  agreement,  paid  each  of  them 
for  their  labor  the  same  as  if  they  were  strangers ;  so  that  in 
no  event  could  there  be  any  risk  of  loss  on  their  past.  Nor 
could  any  liability  arise  by  which  any  one  would  be  subject  to 
loss  by  the  act  of  the  others,  as,  by  the  terms  of  the  agreement, 
no  one  could  contract  any  debt  by  which  the  other  could 
be  bound,  except  with  the  personal  assent  of  the  party  to  be 
bound.  It  was,  therefore,  simply  an  agreement  for  a  division 
of  profits  in  the  event  of  success,  and  that  would  not  make  them 
partners  inter  se.  The  action  was  properly  brought  to  recover 
damages  for  the  breach  of  the  agreement,  and  the  plaintiff  is 
entitled  to  a  new  trial. 


AAEON  JACOBS  v:  HENKY  II.  MOKANGE. 

Where  the  review  and  reversal  of  a  judgment  by  the  ultimate  appellant  tribu- 
nal was  a  nullity,  because  the  appeal  was  not  taken  in  a  way  that  entitled 
the  Court  to  hear  it,  but  for  which  the  appellant  was  not  responsible, — Held, 
after  nine  years  of  acquiescence  and  repose  by  the  party  who  recovered  the 
original  judgment,  that  he  would  be  restrained  by  a  Court  of  Equity  from 
enforcing  it,  unless  be  consented  that  an  appeal  might  then  be  brought 
with  the  same  effect  as  if  it  had  been  brought  within  the  time  prescribed  by 
law. 

Where  a  Court  has  not  jurisdiction  of  the  subject  matter,  the  consent  of  par- 
ties will  not  confer  it ;  but  a  consent  that  an  appeal  may  be  brought  after 
the  time  has  elapsed  for  bringing  it,  is  not  liable  to  that  objection.  The 
appellate  Court  having  the  general  power  to  review  judgments  upon  appeal, 
such  a  consent  does  not  confer  it,  but  it  is  a  mere  waiver  of  the  right  to  in- 
sist that  the  time  has  passed  for  bringing  the  appeal 

The  extent  to  which  a  Court  of  Equity  will  go  in  staying  proceedings  upon 
judgments, — commented  upon  and  considered. 

APPEAL  by  the  defendants  from  an  order  at  Special  Term 
denying  a  motion  to  dissolve  an  injunction.  The  facts  are 
fully  stated  in  the  opinion  of  the  Court. 

Henry  77.  Mbranye,  for  appellant. 
Alex.  Kursheedt,  for  respondent. 


524  COURT  OF  COMMON  PLEAS. 

Jacobs  v.  Morange. 

BY  THE  COURT. — DALY,  F.  J. — This  is  an  appeal  from  an 
order  denying  a  motion  to  dissolve  an  injunction. 

The  -plaintiff,  Jacobs,  as  the  assignee  of  Leonora  Roll  man, 
brought  an  action  in  the  Marine  Court  in  the  year  1S55, 
against  the  defendant  Morange,  to  recover  the  amount  of  a 
judgment,  which.  Mrs.  Rohman  had  obtained  against  the  sher- 
iff, and  which  Morange  had  collected  as  her  attorney.  Morange 
set  up  a  counter-claim  for  professional  services,  and  a  judgment 
was  rendered  in  his  favor  for  sixty-six  dollars.  From  this 
judgment,  as  entered  up  by  the  justice,  Jacobs  appealed* to 
this  Court ;  this  Court  having  decided  (Norris  v.  La  Farge,  3 
Abb.  R.,  314,  n.),  that  under  the  peculiar  phraseology  of  the 
Code,  the  appeal  from  the  Marine  Court  to  this  Court  must 
be  from  the  judgment  of  the  Justice,  and  that  no  appeal 
would  lie  from  a  judgment  of  the  General  Term  of  the  Marine 
Court.  The  plaintiff  therefore  brought  the* appeal  in  the  only 
way  in  which,  according  to  the  decision  of  this  Court,  it 
could  then  be  brought.  It  was  heard  before  the  General  Term 
upon  the  merits  ;  the  defendant  Morange  arguing  it  in  person, 
and  after  full  consideration  we  decided  that  the  judg- 
ment should  be  reversed  with  costs,  upon  the  ground  that 
it  was  not  warranted  by  the  evidence ;  and  as  the  defendant 
Morange  paid  the  costs,  no  judgment  of  reversal  was  entered. 

Eleven  months  afterwards,  the  Court  of  Appeals  decided 
(The  People  on  rel.  of  Debenetti  v.  Gale,  Clerk  of  the  Marine 
Court,  13  How.  Pr.  R.,  260)  that  the  decision  of  this  Court  was 
erroneous,  and  that  we  had  no  power  to  hear  an  appeal  from  a 
judgment  of  the  Marine  Court  until  an  appeal  was  first  heard 
and  determined  by  the  General  Term  of  that  Court.  By  this 
decision  all  the  proceedings  in  this  Court  upon  the  appeal 
from  this  judgment  were  coram  nonjudici  and  void,  and  as  the 
time  had  then  gone  by  within  which  the  plaintiff  could  have 
appealed  to  the  General  Term  of  the  Marine  Court,  he  lost, 
without  any  fault  on  his  part,  the  right  to  have  the  judgment 
reviewed  in  the  only  mode  in  which,  by  the  decision  of  the 
Court  of  Appeals,  it  could  be  reviewed. 

Nine  years  afterwards,  the  defendant  Morange,  upon  an 
affidavit  that  an  execution  upon  the  judgment  had  been  re- 
turned unsatisfied,  and  that  it  had  remained  unpaid,  obtained 
an  order  supplementary  to  execution  from  a  Judge  of  this 


KEW  YOEK— FEBRUARY,  1866.  525 


Jacobs  v.  Moramre. 


Court  for  the  examination  of  the  plaintiff  Jacobs,  upon  which 
Jacobs  brought  the  present  action  to  enjoin  Morange  from 
proceeding  to  enforce  the  judgment,  and  an  injunction  to  that 
effect  having  been  obtained,  Morange  made  a  motion  at  the 
Special  Term  to  dissolve  it,  which  motion  was  denied. 

This  is  a  peculiar  case.  It  is  not  very  probable  that  any 
case  like  it,  or  even  analogous  to  it,  will  be  found,  in  which 
the  aid  of  a  Coutf.of  Equity  has  been  asked.  But  the  grounds 
upon  which  Courts  of  Equity  stay  proceedings  at  law  upon 
judgments  are  of  a  broad  and  comprehensive  character.  The 
occasions  upon  which  an  injunction  may  be  obtained  for  that 
purpose  are,  to  use  the  language  of  STOBY,  "  almost  infinite  in 
their  nature  and  circumstances,"  and  this  case,  in  my  judg- 
ment, presents  one  of  them. 

This  Court  was  the  tribunal  of  last  resort  to  which  the  defen- 
dant could  appeal  from  the  judgment  against  him  in  the  Ma- 
rine Court.  He  might  have  appealed  to  the  General  Term  of 
that  Court,  but  if  he  had,  and  the  judgment  had  been  affirmed 
there,  he  would,  according  to  our  decision,  have  cut  himself 
off  from  any  appeal  to  this  Co.urt.  He  did,  therefore,  what 
was  done  in  nearly  all  cases  at  that  time,  viz  :  brought  his  appeal 
directly  to  this  Court,  within  twenty  days  after  the  recovery 
of  the  judgment.  Being  a  Court  of  superior  jurisdiction,  and 
the  general  appellate  tribunal  of  the  Marine  Court,  he  wished 
to  have  the  benefit  of  its  revision  and  judgment,  and  brought 
his  appeal  here  in  the  only  mode,  according  to  our  decision,  in 
which  it  could  be  brought.  The  defendant,  who  is  a  lawyer, 
appeared  upon  the  appeal,  and  argued  it.  He  availed  himself 
of  the  opportunity  of  presenting  to  the  Court  his  views  in  sup- 
port of  the  correctness,  of  the  judgment.  The  Court  at  a  sub- 
sequent term  expressed  its  unanimous  opinion  that  the  judg- 
ment was  wrong,  and  ought  to  be  reversed,  and  he,  by  paying 
the  costs  of  the  appeal  to  prevent  the  entry  of  a  judgment  of 
reversal,  acquiesced  in  the  validity  and  finality  of  the  proceed- 
ings, and  now,  after  nine  years  of  repose,  during  which  interest 
has  been  accumulating  upon  the  judgment,  he  institutes  pro- 
ceedings to  enforce  it. 

The  power  which  the  Court  of  Chancery  assumed  of  staying 
proceedings  upon  judgments  at  law,  in  proper  cases,  by  injunc- 
tion, had  its  foundation  in  the  interdict  of  the  Roman  law 


526  COURT  OF   COMMON  PLEAS. 

,  » 

Jacobs  v.  Morange. 

which  was  introduced  to  prevent  the  undue  exercise  of  rights 
(Instit.,  Lib.  4,  tit.  15,  §  18 ;  Story's  Equity  Jurisprudence, 
§  868),  and  the  general  rule  deducible  from  the  exercise  of  this 
peculiar  and  delicate  jurisdiction,  was  comprehensively  stated 
by  Chief  Justice  MARSHALL  in  these  words :  "  Without  attempt- 
ing to  draw  any  precise  line  to  which  Courts  of  Equity  will 
advance,  and  which  they  cannot  pass,  in  restraining  parties 
from  availing  themselves  of  judgments  obtained  at  law,  it  may 
safely  be  said  that  any  fact  which  clearly  proves  it  to  be 
against  conscience  to  execute  a  judgment  and  of  which  the 
injured  party  could  not  have  availed  himself  in  a  court  of  law, 
or,  of  which  he  might  have  availed  himself  at  law,  bnt  was 
prevented  by  accident  or  fraud,  unmixed  with  any  fault  or 
negligence  on  his  part,  or  that  of  his  a^ent,  will  justify  an  ap- 
plication "  (The  Marine  Insurance  Company  of  Alexandria  v. 
Hodgson,  7  Cranch,  332 ;  aud  see  to  the  same  effect,  Truly  v. 
Warner,  5  How.  U.  S.  R.,  p.  141 ;  Story's  Equity  Jur.,.  §§  887, 
885).  The  grounds  upon  which  this  case  may  be  said  to  rest 
.to  bring  it  within  this  rule  are  :  First,  that  the  judgment  is  er- 
roneous ;  second,  that  it  is  not  iji  the  plaintiff's  power  to  get  it 
reversed  at  law  ;  and  third,  that  his  inability  to  do  so  has  not 
arisen  from  any  fault  or  negligence  on  his  part.  In  Jarvis  v. 
Chandler,  (1  Turn,  and  Russ.,  319),  the  sentence  of  an  Admir- 
alty Court  was  stayed  by  an  injunction  where  it  appeared  that 
new  evidence  had  been  discovered  at  a  period  when,  by  the 
practice  of  the  Admiralty  Court,  it  could  not  be  received  ;  and 
though  a  Court  of  Equity  will  not  relieve  against  a  judgment 
unconscientiously  obtained,  where  a  party  has,  through  his 
negligence,  lost  the  opportunity  of  moving  for  a  new  trial 
(Dodge  v.  Strong,  2  Johns.  C.  R.,  228  ;  Smith  v.  Lowry,  1  Id., 
320),  yet  it  seems  that  it  would  be  otherwise  if  he  had  no  oppor- 
tunity to  move  for  a  new  trial  in  the  Court  where  the  judg- 
ment was  rendered  (Knifony  v.  Hendricks,  2  Gratton's  R., 
212)  ;  and  where  a  defendant  in  a  j  udgment  lost  his  remedy  by 
appeal,  because  he  could  not  get  sureties  to  prosecute  it,  being 
a  stranger,  it  was  held  that  relief  would  be  granted  in  equity 
(Roberts  v.  Contrel,  3  Heyw.  R.,  220).  It  is,  in  the  sense  of  a 
Court  of  Equity,  against  conscience  to  enforce  this  judgment 
after  this  Court,  the  appellate  tribunal  of  the  Marine  Court,  has 
upon  mature  consideration,  unanimously  declared  that  it  was 


NEW  YOKE— FEBRUARY,  1866.  527 

Jacobs  v.  Morange. 

wrong  and  onght  to  be  reversed,  though  the  appeal  came 
before  us  in  a  mode  that  did  not  entitle  us  to  review  the  judg- 
ment, and  when  it  is  now  beyond  the  power  of  the  plaintiff  to 
have  it  reviewed  in  any  shape.  It  may  be  said  that  he  ought 
to  have  known  the  law  as  subsequently  expounded  by  the 
Court  of  Appeals  ;  that  he  ought  to  have  brought  his  appeal 
in  the  first  instance,  to  the  General  Term  of  the  Marine 
Court ;  and  if  the  judgment  was  affirmed,  prosecuted  an 
appeal  to  this  Court,  notwithstanding  our  decision  that  we 
would  not  entertain  one.  To  hold  that  his  omission  to  do  this 
was,  under  the  circumstances,  an  act  of  negligence,  which 
must  cut  him  off  from  all  right  to  equitable  relief,  would,  in 
my  judgment  be  going  too  far. 

The  injunction,  I  think,  should  be  sustained  and  made  per- 
petual, unless  the  defendant  enters  into  a  written  consent  that 
the  appeal  from  the  judgment  may  now  be  brought  to  the 
General  Term  of  the  Marine  Court  with  the  same  effect  as  if  it 
had  been  brought  within  thirty  days  after  notice  of  the  judg- 
ment, and  be  heard  upon  the  return  made  by  Justice  BIEDSAI.L 
upon  the  appeal  to  this  Court.. 

"Where  the  Court  has  not  jurisdiction  of  the  subject  matter 
it  cannot  acquire  it  by  the  consent  of  the  parties  ;  but  the 
General  Term  of  the  Marine  Court  has  jurisdiction  upon  appeal 
from  a  judgment  of  that  Court,  and  the  time  within  which  the 
appeal  may  be  brought,  is  a  matter  which  can  be  waived 
(Heyer  v.  Burger,  1  Hoff.  C.  R.,  17). 

Judgment  accordingly. 


523  COURT   OF   COMMON  PLEAS. 


Hoyt  v.  The  Sixth  Avenue  Railrond  Company. 


WILLIAM  A.  HOTT  v.  THE  SIXTH  AVENUE  RAILKOAD  COMPANY. 

A  statute  declaring  that  railroad  companies  shall  not  charge  more  than  three 
cents  a  mile  for  the  transportation  of  a  passenger  and  his  ordinary  baggage, 
under  a  penalty,  does  not  apply  to  railroads  in  cities,  composed  of  separate 
vehicles  drawn  by  horses,  unprovided  with  apartments  for  the  safe  keeping 
and  transportation  of  baggage,  the  vehicles  of  which  must  stop  at  any  part 
of  the  route  where  a  passenger  presents  himself,  or  for  him  to  leave  when 
he  wishes,  the  compensation  for  whose  carriage  cannot  be  adjusted  by  the 
standard  of  miles,  but  must  be  one  fixed  sum,  whether  he  goes  the  entire 
distance  or  not ;  but  it  applies  only  to  railroads  whose  cars  are  propelled  by 
steam,  which  transport  passengers  and  their  baggage  from  one  fixed  place 
or  station  to  another,  without  stopping  at  any  intermediate  point,  aud  in 
which  it  is  possible  to  adjust  and  fix  beforehand  the  amount  of  fare  to  be 
paid  from  place  to  place. 

APPEAL  by  the  plaintiff  from  a  judgment  of  the  Eighth 
District  Court. 

The  'action  was  brought  to  recover  the  sum  of  fifty  dollars 
forfeiture  under  the  "  Act  to  prevent  extortion  by  railroad 
companies,"  passed  March  27,  1857. 

The  complaint  alleged  that  on  t lie  fifteenth  day  of  December, 
1864,  .the  plaintiff  became  and  was  a  passenger  on  one  of  the 
defendant's  cars,  in  which  he  rode  for  less  than  a  mile;,  that 
for  such  distance  the  defendant's  servant,  the  conductor  of  the 
car,  asked  of  and  received  from  the  plaintiff,  as  fare,  a  greater 
sum  than  three  cents,  to  wit.,  the  sum  of  six  cents. 

The  justice  rendered  judgment  fur  the  defendant,  from 
which  the  plaintiff  appealed  to  the  Court  of  Common  Pleas. 

J.  M.  Buckingham  and  Elbridge  T.  Gerry ',  for  appellant. 
John  H.  Platt  and  John  Slossson,  for  the  respondent. 

BY  THE  COUKT. — DALY,  F.  J. — In  the  year  1850  a  general 
act  was  passed  allowing  the  formation  of  companies  for  the 
purpose  of  constructing,  maintaining  and  operating  railroads 
for  public  use  in  the  conveyance  of  persons  and  property  (Laws 
of  1850,  p.  311).  In  the  year  1851,  permission  was  granted  to 
the  defendants,  by  the  Corporation  of  the  City  of  Ne\V  York, 
to  construct  a  railroad  from  Chambers  street  to  the  present 
terminus  of  their  route,  which  is  within  the  city  limits,  upon 
the  conditions,  among  others,  that  they  should  have  cars  with 


YOKK—  MARCH,  1866.  529 


Hoyt  v.  The  Sixth  Avenue  Railroad  Company. 


all  the  modern'  improvements,  for  the  convenience  and  comfort 
of  passengers  ;  that  they  should  run  cars  every  day  both  ways, 
as  often  as  public  convenience  should  require  ;  that  the  rate  of 
passage  for  any  distance  should,  not  exceed  five  cents,  and  that 
no  motive  power,  except  horses,  should  be  used  below  Forty- 
second  street  ;  and  in  the  same  year,  after  this  permission  was 
given,  the  defendants  were  organized  and  incorporated  under 
the  general  railroad  act  before  referred  to.  By  the  28th  section 
of  this  act  (subd.  9),  it  is  provided  that  every  corporation  or- 
ganized under  it  shall  have  power  to  regulate  the  time  and 
manner  in  which  passengers,  and  property  shall  be  transported, 
and  the  compensation  to  be  paid  therefor  ;  but  that  such  com- 
pensation for  any  passenger  and  his  ordinary  baggage  shall  not 
exceed  three  cents  per  mile.  By  an  act  passed  in  1857,  it  was 
provided  that  any  railroad  company  may  take  for  any  frac- 
tional distance  less  than  a  mile,  the  legal  rate  of  fare  for  one 
mile  ;'and  which  act  also  declared  that  any  railroad  company 
which  shall  ask  and  receive  any  greater  fare  than  that  allowed 
by  law,  shall  forfeit  fifty  dollars,  to  be  recovered,  together  with 
the  excess  so  received,  by  the  party  paying  the  same  (Laws  of 
185T,  vol.  1,  p.  432). 

The  plaintiff  was  carried  as  a  passenger  upon  the  defendants' 
road,  from  Fifteenth  to  Twenty-third  street,  a  distance  less  than 
a  mile,  for  which  the  defendants'  agent  asked  and  was  paid  by 
the  plaintiff,  six  cents,  and  upon  the  ground  that  this  was 
three  cents  more  than  is  allowed  by  the  statute  referred  to,  the 
plaintiff  brought  this  action  to  recover  the  excess  and  the  penalty 
of  fifty  dollars.  The  statute,  in  my  opinion,  was  not  intended 
to  apply  to  city  railroads  which  are  drawn  by  horses,  but  to 
those  propelled  by  steam,  which  transport  passengers  and  their 
baggnge  from  one  fixed  place  to  another,  without  stopping  at 
any  intermediate  point  between,  which  have  an  appointed  time 
for  the  departure  of  a  train,  and  fixed  stations  or  depots,  at 
which  it  stops,  but  at  no  other  place,  for  the  reception  of  or 
putting  off  of  passengers  and  their  baggage  —  railroads  which 
have,  under  this  act,  the  power  to  regulate  the  time  when  and 
the  manner  in  which  passengers  and  property  shall  be  trans- 
ported, as  well  as  the  compensation  to  be  paid  for  carriage  ot 
either,  whilst  a  city  railroad,  like  that  of  the  defendants,  may 
not  regulate  the  time  when  they  will  carry  passengers,  but 
34 


530  COURT  OF  COMMON  PLEAS. 

Hoyt  v.  The  Sixth  Avenue  Railroad  Company. 

must,  by  the  conditions  imposed  by  the  City  Corporation,  rnn, 
'during  the  day  and  night,  as  often  as  public  convenience  re- 
quires, and  which,  so  far  from  regulating  the  compensation  to 
be  paid  for  the  carriage  of  persons  and  property,  do  not  en- 
gage to  carry  property  at  all,  but  carry  passengers  only  at  a 
sum  fixed  by  the  City  Corporation. 

A  city  railroad  is  a  mere  omnibus  upon  rails.  Like  an 
omnibus  it  stops  everywhere  along  its  route,  to  enable  passen- 
gers to  come  in  or  go  out.  It  is  not  like  the  railroads  to 
which  the  statute  applies,  intended  for  the  transportation  of  a 
"  passenger  and  his  ordinary  baggage."  It  has  no  apartment 
for  the  reception,  safe  keeping  and  transit  of  the  trunks  of  the 
traveller ;  but  is  composed  of  a  number  of  separate  vehicles 
run  by  horses,  and  provided  only  with  seats  for  passengers.  In 
the  railroads  contemplated  by  the  statute,  the  distance  from 
one  stopping-place  to  the  other  is  accurately  known,  so  that  it 
is  possible  to  adjust  and  fix  beforehand,  according  to  the  rule 
supplied  by  the  statute,  the  exact  amount  which  the  traveller 
is  to  pay  ;  but  this  is  not  practicable  or  possible  in  the  case  of 
a  city  railroad  like  that  of  the  defendants.  It  extends  over  a 
distance  of  about  three  miles,  and  its  cars  must  stop  to  take  in 
a  passenger  upon  any  part  of  the  route  at  which  he  presents 
himself,  and  for  him  to  leave  when  he  wishes.  It  is  not  pos- 
sible, therefore,  to  adjust  the  fare  he  must  pay  by  the  standard 
of  miles;  to  adjust  and  fix  beforehand  by  an  established  tariff 
the  amount  he  must  pay  from  the  point  where  the  car  receives 
him  to  the  place  where  he  gets  off,  and  the  only  practicable 
course  is  to  have  one  fixed  rate  of  fare,  which  the  passenger  is 
to  pay,  whether  he  goes  the  entire  distance  or  not,  which  is 
uniformly  and  necessarily  the  mode  adopted  in  all  similar  con- 
veyances. It  is  these  distinguishing  features  which  make  it 
very  plain  to  my  mind  that  city  railroads,  like  the  one  operated 
by  the  defendants,  were  not  designed  to  be  embraced  by  the 
provision  in  question.  But  there  is  another  consideration. 
The  resolution  of  the  Common  Council,  which  constituted  the 
license  or  grant  under  which  the  defendants  obtained  the  right 
to  construct  and  run  their  road,  declares  that  the  rate  of  pas- 
sage, for  any  distance,  shall  not  exceed  five  cents,  which  must 
also  be  interpreted  as  meaning  that  that  sum  may  be  charged 
for  anv  distance,  and  this  would  be  more  than  three  cents  a 


NEW  YOEK— FEBKUAKY,   1866.  531 

In  the  matter  of  Hawley. 

mile,  if  the  passenger  is  carried  less  than  a  mile.  But  the 
Legislature,  by  a  general  Act  passed  in.  1854,  confirmed  the 
grants,  licenses,  and  resolutions  under  which  the  defendants 
road  was  constructed,  which  was  a  legislative  recognition  of 
the  defendants'  right  to  charge  this  rate  of  five  cents  for  any 
distance.  It  is  claimed  that  the  resolution  of  the  Common 
Council  is  to  be  regarded  as  a  law  allowing  five  cents  to  be 
charged,  and  that  as  the  defendants  in  this  case  have  charged 
six,  they  have  incurred  the  penalty  of  fifty  dollars  by  exacting 
a  greater  rate  of  fare  than  that  allowed  by  law  ;  but  I  think, 
upon  referring  to  the  statute  of  1857,  the  penalty  there  pro- 
vided for  was  meant  to  apply  to  the  railroads  whose  compensa- 
tion is  regulated  by  the  standard  of  miles,  as  limited  and  fixed 
by  the  preceding  Act  of  1850.  The  question  whether  the  de- 
fendants have  the  right  to  increase  their  fare  to  six  cents  is 
another  question  which  is  to  be  considered  and  disposed  of  in 
another  case.  The  plaintiff  has  not  put  his  right  of  action 
upon  that  ground,  but  has  framed  his  complaint  for  a  recovery 
under  the  statute.  Upon  that  ground  it  cannot  be  sustained. 
The  Justice  decided  correctly,  and  his  judgment  should  be 
aifirmed. 

Judgment  affirmed. 


In  the  matter  of  PATRICK  HAWLEY,  an  applicant  for  naturali- 
zation. 

Before  DALY,  First  Judge,  at  the,  February  Special  Term, 

1866. 

A  man's  residence  is  that  place  where  his  family  dwells,  or  which  he  makes 
the  chief  seat  of  his  affairs  and  interests. 

Before  an  alien  can  be  naturalized  he  must  have  resided  in  the  United  States 
for  five  years  next  preceding  the  time  when  he  applies  to  Ix;  admitted  a 
citizen.  The  repealing  act  of  June  26,  1848,  has  not  abrogated  this  provi- 
sion. 


532  COURT  OF  COMMON  PLEAS. 

In  the  matter  of  Hawley. 

An  alien  came  to  this  country  when  he  was  of*  the  age  of  thirteen,  and  resided 
here  till  he  was  twenty  -  three  years  of  age,  when  he  returned  to 
Ireland,  the  place  of  his  birth,  and  where  his  parents  resided,  for  the  pur- 
pose of  seeing  his  father,  who  was  ill,  but  remained  there  seven  years,  dur- 
ing which  time  he  followed  his  calling  as  a  mechanic, — Held,  he  had  lost  his 
residence  in  \his  country  though  he  may  have  intended  to  return  and  live  in 
this  country,  and  so  expressed  himself  to  his  friends  when  leaving,  and  had 
declared  his  intention  to  become  a  citizen  in  the  manner  required  by  law. 

The  applicant,  Hawley,  came  to  this  country  at  the  age  of 
thirteen,  and  resided  here  until  he  was  twenty-three  years  of 
age,  when  he  declared  his  intention  of  becoming  a  citizen  in  the 
manner  required  by  law.  He  then  went  to  Ireland,  in  conse- 
quence of  the  illness  of  his  father,  expressing,  however,  to  his 
friends  and  acquaintances  his  intention  to  return  and  live  in 
this  country.  He  remained  in  Ireland  seven  years,  when  he 
returned. to  the  United  States  in  1864,  and 'lived  for  a  little 
more  than  a  year  in  the  State  of  New  York.  He  applied  for 
naturalization. 

DALY,  F.  J. — By  the  twelfth  section  of  the  act  for  the  regu- 
lation of  seamen  on  board  of  the  public  and  private  vessels  of 
the  United  States,  passed  March  3, 1813,  it  was  declared  that  no 
person  who  should  arrive  in  the  United  States  after  that  act 
took  effect,  should  be  admitted  to  become  a  citizen,  who  should 
not  have  resided  within  the  United  States  for  the  continued 
term  of  five  years  next  preceding  hw  admission,  without  being 
at  any  time  during  the  said  five  years,  out  of  the  territory  of 
the  United  States  (Dunlop's  Laws,  p.  493).  This  last  clause, 
"  without  being  out,  &c.,"  was  repealed  by  the  act  of  June  26, 
1848,  but  this  repeal  did  not  affect  the  prior  provision  requir- 
ing a  continued  residence  for  five  years  next  preceding  the  appli- 
cant's admission.  The  only  effect  of  the  change  was  to  allow 
persons  to  be  naturalized  who  had  gone  out  of  the  territory  of 
the  United  States,  but  still  retained  their  residence  therein.  As 
the  law  stood  before  this  repeal,  it  was  decided  in  this  Court, 
that  a  person  visiting  the  Falls  of  Niagara,  who  had  crossed  to 
the  Canadian  side  to  look  at  the  falls  from  that  point  of  view, 
had  been  out  of  the  territory  of  the  United  States,  and  could 
not  be  naturalized  until  the  expiration  of  five  years  thereafter. 
Now,  however,  a  person  may  be  absent  from  the  United  States, 
and  yet  retain  his  residence,  and  the  question  in  this  case  is 
whether  Hawley,  the  applicant,  can  be  regarded  as  being  a 


NEW  YORK— FEBRUARY,  1866.  533 

In  the  matter  of  Hawley. 

resident  of  this  State  during  the  period  that  he  was  absent  in 
Ireland  ;  for  unless  the  facts  will  warrant  that  conclusion,  there 
has  not  been  that  continuous  residence  for  five  years  next  pre- 
ceding the  applicant's  admission,  which  the  Act  of  1813  re- 
quires. 

When  Hawley  left  the  United  States  at  the  age  of  twenty- 
three,  he  was  an  unmarried  man.  His  father  and  mother  were 
living  in  Ireland,  and  had  never  been  in  this  country.  He  was 
a  mechanic,  having  no  fixed  place  of  business,  but  worked 
at  his  trade  wherever  he  found  employment.  The  residence  of 
such  a  person  shifts  with  every  change  of  place,  for  if  he  quits 
his  employment  in  New  York,  and  engages  with  an  employer 
in  New  Jersey,  he  ceases  to  be  a  resident  of  this  State,  and 
commences  to  acquire  a  residence  there.  When  Hawley  left 
this  country  for  Ireland,  he  no  doubt  intended  to  return  here, 
and  as  he  went  there  in  consequence  of  the  illness  of  his  father, 
he  probably  contemplated  nothing  more  than  a  temporary  ab- 
sence. If  it  had  been  merely  a  visit  to  see  his  parents,  and  he  had 
returned  to  this  country  within  what  would  be  deemed 
a  reasonable  time,  under  the  circumstances,  I  should,  in  view 
of  the  intention  he  expressed  when  leaving,  have  regarded 
it  as  a  continuing  residence  which  had  never  been  aban- 
doned. But  he  was  absent  for  seven  years,  and  it  appears 
that  during  a  portion  of  that  time  he  worked  as  a  me- 
chanic in  Ireland,  as  he  had  done  in  this  country.  This 
last  circumstance,  coupled  with  his  long  absence,  is  decisive 
upon  the  question  of  residence.  There  are  few  questions  that 
come  up  for  the  consideration  of  judicial  tribunals,  which  it  is 
more  difficult  to  define  than  what  will  constitute  a  resi- 
dence. The  best  definition  that  I  have  ever  been  able  to  find, 
or  which  my  own  experience  could  suggest,  and  I  have  had  a 
great  deal,  is  that  to  be  deduced  from  the  Roman  law ;  that  a 
man's  residence  is  the  place  where  his  family  dwells,  or  which 
he  makes  the  chief  seat  of  his  affairs  and  interests  (Dig.  50, 
tit.  1, 16,  20,  27,  203  ;  Code,  tit.  39,  7).  Hawley  was  a  native  of 
Ireland.  His  parents  lived  there,  and  while  he  was  there  follow- 
ing his  calling  of  a  mechanic,  it  was,  in  the  words  of  this  com- 
prehensive definition,  the  chief  seat  of  his  affairs  and  interests. 
He  lost  liia  residence  here,  and  was,  up  to  the  time  of  his  re- 
turn, a  resident  of  Ireland.  That  was  but  little  more  than  a 


534  COURT    OF    COMMON    PLEAS. 

In  the  matter  of  Scott. 

year  ago,  and  until  be  has  resided  here  five  years  from  that 
time,  he  cannot,  by  the  provisions  of  the  Act  of  1813,  be  natu- 
ralized. 

Application  denied. 


In  the  matter  of  ROBEBT  SCOTT,  an  applicant  for  naturaliza- 
tion. 

Before  DALY,  First  Judge,  at  /Special  Term,  August,  1848. 

The  residence  of  a  seaman,  if  married,  is  the  place  where  his  family  dwells, 
or  if  he  has  never  been  married,  the  place  where  his  domicil  was  fixed  when 
he  first  went  to  sea  as  a  mariner. 

S.,  an  alien,  came  to  this  country  with  his  parents  when  he  was  three  years  of 
age,  and  lived  with  them  hi  the  city  of  New  York,  until  their  death,  when 
he  shipped  from  the  port  of  New  York  as  a  mariner,  in  an  American  vessel 
and  for  seven  years  thereafter  he  was  employed  exclusively  and  continu- 
ously as  a  seaman  hi  the  merchant  service  of  the  United  States  ; — Held,  that 
he  was  to  be  deemed  a  resident  of  the  United  States,  and  of  the  State  of 
New  York,  during  that  time,  and  was  entitled  to  be  naturalized. 

The  applicant,  Scott,  came  to  this  country  from  England, 
with  his  parents,  when  he  was  three  years  of  age.  They  took 
up  their  residence  in  the  city  of  New  York,  and  he  continued 
to  live  with  them  until  their  death,  when  he  shipped,  at  the 
age  of  seventeen,  as  a  seaman,  from  the  port  of  New  York,  on 
board  of  an  American  vessel,  and  for  seven  years  thereafter, 
and  up  to  the  time  that  he  applied  for  naturalization,  he  had 
been  employed  exclusively  and  continuously  as  a  mariner,  in 
the  merchant  service  of  the  United  States. 

DALY,  J. — Scott  acquired  a  residence  in  the  United 
States  after  his  parents  had  changed  their  domicil  from  Eng- 
land to  this  country.  They  fixed  their  residence  in  this  city,  and 
having  brought  him  here  with  them,  he  had  acquired  a  domicil  and 


NEW   YORK— AUGUST,  1848.  535 


In  the  matter  of  Scott. 


was  a  resident  of  this  City  when  he  first  went  to, sea  as  a  mari- 
ner. From  that  time  to  the  present  he  has  been  employed  ex- 
clusively and  continuously  in  the  merchant  marine  of  the 
United  States.  He  has  never  been  married,  and  the  question 
presented  is  whether  he  has  retained  during  these  seven  years 
the  residence  which  he  acquired  in  this  State,  or  rather, 
has,  within  the  meaning  of  the  acts  of  Congress  of  March  3, 
1813,  §  12,  ch.  XLII,  and  April  14,  1802,  §  2,  ch.  XVIII,  re- 
sided for  the  continued  term  of  five  years  next  preceding  his 
application  for  admission  within  the  United  States,  and  one 
year  within  this  State.  The  clause  at  the  end  of  section  12,  of 
the  act  of  1813,  "  without  being  at  any  time  during  the  said 
five  years  out  of  the  territory  of  the  United  States,"  has  been 
repealed  by  the  recent  act  of  the  26th  of  June,  1848,  ch.  72, 
and  the  question  presented  is  simply  one  of  residence. 

Every  man  has  what  is  called  his  domicil  of  origin,  which  is 
the  place  where  his  parents  were  domiciled  at  the  time  of  his 
birth.  It  continues  until  he  has  acquired  another,  and  revives 
if  the  acquired  domicil  has  been  totally  abandoned  without  any 
intention  of  acquiring  a  new  one,  but  not  otherwise  (Craigie  v. 
Craigie,  3  Curtis's  R.,  435).  Scott,  as  has  been  suggested,  had 
acquired  a  domicil  in  this  State,  and  cannot  be  deemed  to 
have  abandoned  it  while  engaged  in  his  vocation  as  a  mariner 
upon  the  ocean.  ULPIAN  puts  a  case,  wliich  afterwards  be- 
came a  rule  of  the  Roman  law,  that  if  a  man  goes  upon  a 
voyage  to  a  place  where  he  has  to  sojourn  for  some  time,  he 
does  not  acquire  a  domicil  in  that  place,  but  preserves  the 
domicil  which  he  had  in  the  country  which  he  left  (Dig.,  tit.  I, 
27,  §  3).  The  present  case  is  within  the  reason  upon  which 
this  rule  is  founded,  and  is  even  stronger  than  the  case  put  by 
ULPIAN.  Scott  has  sailed  exclusively  in  American  vessels,  and 
the  vessels  of  a  nation,  whether  public  or  private,  partake  of 
the  attributes,  and  in  a  certain  sense,  are  to  be  regarded  as  a 
part,  of  the  territory  of  the  nation.  While  they  are  upon  the 
high  seas,  and  not  within  the  limits  of  the  territory  of  any 
foreign  nation,  they  are  under  and  subject  to  the  jurisdiction 
of  the  country  to  which  they  belong  (  Vattel,  lib.  1,  ch.  19,  §  2  ; 
lib.  11,  chap.  7,  §  80;  Groiius,  lib.  11,  ch.  3,  §  13;  Ruther- 
fvrth  Inst,  vol.  1,  ch.  9,  §§  8,  9  ;  Ortolan  Regie*  Internation- 
ales de  la  Mer,  torn.  1,  pp.  293,  298 ;  Appendice  Annexe,  II, 


536  COUHT  OF  COMMON  PLEAS. 

Black  v.  The  Sixth  Avenue  Railroad  Company. 

p.  441 ;  Wheaton  on  International  Law,  208),  and  this  being 
the  case,  a  seaman  who  has  acquired  a  residence  in  the  United 
States,  must  be  regarded  as  retaining  that  residence,  as  long  as 
he  continues  to  serve  in  the  public  or  private  vessels  of  the 
country.  While  away  from  the  place  where  his  residence  was 
fixed,  the  ship,  whether  it  is  upon  the  ocean  or  in  a  foreign 
port,  is  his  place  of  habitation.  Its  national  character  is  de- 
noted by  its  flag,  and  it  must,  in  such  a  case,  for  the  purpose  of 
residence,  be  regarded  as  a  part  of  the  territory  of  the  nation. 
It  is  always  difficult  to  lay  down  any  general-  rule  upon  the 
subject  of  residence,  but  I  think  it  may  be  said  in  reference  to 
a  seaman,  that  if  he  is  married,  his  residence  is  the  place  where 
his  family  dwells,  and  if  he  has  never  been  married,  that  it  is 
the  place  where  his  domicil  was  fixed  when  he  first  went  to  sea 
as  a  mariner  (Guier  v.  O'Daniel^  1  Binney,  34:9  ;  Abington  v. 
North  Bridgewater,  23  Pick.,  170,  177 ;  Exparte  Pasqualt,  1 
Cranch  Cir.  0.  E.,  243  ;  Story  on  Conflict  of  Laws,  §  46).  The 
domicil  which  Scott  had  in  this  State  when  he  first  shipped 
from  this  port,  has  been  retained  during  the  seven  years  that 
he  has  followed  the  sea.  He  is  regarded,  therefore,  as  having 
resided  for  the  past  five  years  in  the  United  States,  and  in  this 
State,  and  is  entitled  to  be  naturalized. 


GEORGE  W.  BLACK  v.  THE  SIXTH  AVENUE  R.  R.  COMPANY. 

Where  the  proportionable  amount  of  the  tax  on  gross  receipts  of  a  railroad 
company,  imposed  by  the  U.  S.  Internal  Revenue  Law,  which  is  allowed 
by  the  statute  to  be  added  to  and  collected  with  the  fare  of  each  passenger, 
is  a  fractional  part  of  one  cent, — Held,  that  the  company  is  limited  to  such 
fractional  amount,  and  there  being  no  coin  in  which  it  can  be  paid,  the  loss 
must  fall  on  the  company,  and  not  on  the  passengers. 

APPEAL  from  the  judgment  of  the  Sixth  District  Court. 


NEW  YORK— FEBRUARY,  I860.  537 

Black  v.  The  Sixth  Avenue  Railroad  Company. 

The  plaintiff  brought  an  action  against  the  defendants,  a  city 
Railroad  Company,  incorporated  under  a  license  from  the 
Mayor,  Aldermen,  and  Commonalty  of  New  York,  ratified  by 
an  Act  of  the  legislature,  for  the  carrying  of  passengers,  and 
by  that  license  or  grant  were  restricted  to  a  fare  of  five  cents  for 
each  passenger.  The  Company  having  increased  their  fare  to  six 
cents,  the  plaintiff  sued  for  fourteen  cents,  the  sum  of  the  ex- 
cesses of  fare  on  fourteen  trips,  and  for  fifty  dollars,  the  penalty 
under  the  provisions  of  the  General  Railroad  Act,  for  an  over- 
charge. 

The  District  Court  gave  judgment  for  the  defendants  on 
these  facts,  and  the  plaintiff  appealed. 

George  A.  Black,  for  appellant. 

John  H.  Plait  and  John  Slosson,  for  respondent. 

BY  THE  COURT. — DALY,  F.  J. — The  question  whether  the  de- 
fendants are  liable  to  the  penalty  imposed  by  the  Act  of  1857, 
has  been  considered  and  disposed  of  in  Hoyt  v.  The  same  defen- 
dants, decided  at  the  present  term. 

There  is  in  this  case  another  question — whether  the  defen- 
dants have  a  right  to  increase  their  fare  to  six  cents.  It  does 
not  appear  that  the  defendants  derive  their  right  to  run  a  rail- 
road through  the  city  from  the  General  Railroad  Act,  under 
which  they  are  organized,  or  from  any  direct  grant  of  the  Leg- 
islature to  that  effect,  so  as  to  bring  them  within  the  decision 
of  the  Court  of  Appeals  in  The  People  v.  Kerr  (25  How.  R., 
258).  They  appear  to  have  acquired  it  by  a  grant  from  the 
Corporation  of  the  city  of  New  York,  afterwards  ratified  by  an 
act  of  the  Legislature  (Laws  of  1854,  p.  323),  and  they  exercise 
it,  consequently,  subject  to  the  conditions  which  the  Corpora- 
tion imposed.  One  of  these  conditions  was,  that  the  rate  of 
passage  for  any  distance  on  the  road  should  not  exceed  five 
cents,  and  they  cannot  lawfully  charge  more,  unless  authorized 
to  do  so  by  some  paramount  authority.  This  authority  is  as- 
sumed to  have  been  conferred  by  the  United  States  Internal 
Revenue  Act,  which  imposes  a  tax  of  two  and  a  half  per  cent 
upon  the  gross  receipts  of  all  railroad  companies,  and  declares 
that  they  shall  have  the  right  to  add  it  to  their  rates  of  fare. 
(Laws  of  the  U.  S.,  1864,  p.  286).  But  the  difficulty  in  the  defen 
dants'  case  is,  that  the  rate  of  fare  to  which  they  are  limited 


538  COURT  OF   COMMON  PLEAS. 

Grinnell  v.  Buchanan. 

by  the  condition  imposed  by  the  City  Corporation,  is  so  small 
that  it  is  not  possible  to  add  to  and  collect  with  it  the  propor- 
tionable amount  of  the  tax,  which  is  about  one-eighth  of  a 
cent ;  and  to  add  one  cent  to  the  fare  of  each  passenger  would 
be  adding  and  collecting  eight  times  as  much  as  the  amount 
of  the  tax,  for  which  there  is  certainly  no  authority  in  the  Act. 
All  that  can  be  said  of  the  Act  is,  that  it  allows  the  tax  to  be 
added  to  and  collected  with  the  fare  if  it  is  possible  to  do  so, 
and  that,  in  this  particular  case,  it  is  not,  as  the  proportionable 
amount  of  the  tax  is  but  the  fractional  part  of  a  cent.  It  is  a 
maxim  of  the  law  that,  when  anything  is  granted,  all  the  means 
to  attain  it,  and  the  fruits  and  effects  of  it,  are  granted  also 
(Sheppard's  Touchstone,  89).  But  it  would  be  carrying  this 
maxim  too  far  to  hold  that  because  a  party  is  entitled  to  collect 
a  tax  out  of  the  fare  of  passengers,  he  may  resort  to  a  means 
by  which  he  collects  eight  times  as  much.  The  defendants 
may  be  enabled  possibly  to  devise  some  other  mode  by  which 
the  two  and  a  half  per  cent,  may  be  obtained,  or  if  they  cannot, 
they  must  lose  it,  for  the  reason  that  this  particular  provision 
in  the  statute  is  not  operative  in  their  case. 

The  plaintiff  has  so  framed  his  complaint  as  to  entitle  him 
to  recover  fourteen  cents  independent  of  the  statute,  for  exces- 
sive fare  charged  upon  different  occasions,  and  judgment  should 
have  been  in  his  favor  for  that  amount. 

CARDOZO,  J.,  dissented. 
Judgment  reversed. 


INCREASE  M.  GRINNELL  v.  ELIZABETH  BUCHANAN    and  others, 
executors  of  EGBERT  S.  BUCHANAN,  deceased. 

The  rule  that  an  agent  or  trustee  cannot  confer  upon  another  the  right  to  dis- 
charge the  trust  or  duty  created  by  his  appointment,  applies  only  where 
the  act  to  be  done  involves  personal  trust  and  confidence,  or  calls  for 
the  exercise  of  the  agent's  discretion  or  jugdment;  a  mere  ministerial 
or  executive  authority  may  be  delegated  by  an  agent  to  another. 


]STEW  YORK— MARCH,  1866.  539 


Grinnell  v.  Buchanan. 


Where  A.  agreed  with  B.,  that  if  within  a  fixed  time  B.  should  make  an  ar- 
rangement for  the  taking  down  of  certain  houses,  he  would  pay  B.  a  sum  of 
money,  which  sum  was  to  be  paid  as  a  bonus  to  the  party  taking  down  the 
houses,  and  the  arrangement  was  made, — Held,  that  the  agency  of  B.  to  re- 
ceive and  pay  over  the  money,  was  not  one  involving  personal  trust  and 
confidence,  and  might  be  assigned. 

EeXd  further,  that  this  arrangement  having  been  made,  and  its  stipulations 
performed  by  C.,  the  amount  to  be  paid  by  A.  was  simply  a  debt,  oil  which 
a  right  of  action  remained  in  B.,  to  be  prosecuted  for  the  benefit  of  C.,  and 
which  might  be  assigned  by  B.  to  the  party  beneficially  interested. 

The  effect  of  Considerant  v.  Brisbane  (22  N.  Y.,  389), — considered  and  dis- 
cussed, per  DALY,  F.  J. 

The  Code  having  abolished  the  distinction  between  actions  at  law  and  suits  in 
equity,  and  left  but  one  form  of  procedure,  that  form  of  proceeding  is  to  be 
preferred  which  is  the  most  direct,  consistent  and  comprehensive.  Hence, 
where  at  common  law  the  suit  would  have  to  be  brought  in  the  name  of  the 
trustee,  for  the  benefit  of  the  cestui  que  trust,  while  in  equity  it  might  be 
brought  directly  by  the  latter — the  equitable  form  is  to  be  preferred. 

APPEAL  by  the  defendant  from  a  judgment  at  the  trial  term, 
entered  upon  a  verdict  for  the  plaintiff,  directed  by  the  Court. 

It  appeared  upon  the  trial,  that  Robert  S.  Buchanan  in  his 
lifetime  entered,  with  others,  into  a  written  agreement  with 
Raynor  and  Perry,  to  pay  into  their  hands  the  sum  of  one  hun- 
dred dollars,  provided  they  should,  within  three  months  from 
the  date  of  the  agreement,  effect  an  arrangement  by  which  cer- 
tain tenement  bouses  in  Forty-fourth  street  should,  within  nine 
months  thereafter,  be  taken  down,  and  replaced  by  first-class 
dwelling  houses  ;  which  sum,  by  the  terms  of  the  agreement, 
was  to  be  paid  by  Raynor  &  Perry,  as  a  bonus  to  the  party 
or  parties  who  should  within  the  nine  months  remove  the  ten- 
ement houses  and  erect  first-class  dwelling  houses  in  their 
stead. 

Within  three  months  Raynor  &  Perry  effected  such  an 
arrangement  with  Bebee  &  Brother,  and  within  the  nine 
months,  Bebee  &  Brother  caused  the  tenement  houses  to  be 
taken  down,  and  first-class  dwelling  houses  to  be  erected  in 
their  place.  Having  thus,  by  the  performance  of  the  condi- 
tions, become  entitled  to  their  one  hundred  dollars,  Bebee  <fe 
Brother  assigned  all  their  right  to  it  to  the  plaintiff,  and  re- 


540  COUET  OF  COMMON  PLEAS. 

Grinnell  v.  Buchanan. 

leased  Raynor  &  Perry  from  all  claim  or  demand  for  it ;  and 
Raynor  &  Perry  also  assigned  to  the  plaintiff,  whatever  right, 
title  or  interest  they  had  to  it,  under  the  agreement. 

After  the  performance  of  the  conditions  by  Bebee  &  Brother, 
Buchanan  died,  and  his  executors,  upon  being  notified  of  what 
!^ad  been  done,  and  of  the  respective  assignments  to  the  plain- 
tiff, refused  to  pay  the  one  hundred  dollars,  upon  which  the 
present  action  was  brought. 

Upon  the  trial,  the  defendant  insisted  that  under  the  agree- 
ment, the  relation  existing  between  Buchanan  and  Raynor  & 
Perry  was  one  of  agency,  which  was  not  in  its  nature  assigna- 
ble, and  that  no  one,  therefore,  but  Raynor  &  Perry,  could 
maintain  an  action  for  the  recovery  of  the  one  hundred  dollars ; 
but  the  judge  refused  to  so  hold,  and  the  defendant  excepted. 

The  Court  directed  the  jury  to  find  for  the  plaintiff,  and 
from  the  judgment  entered  on  the  verdict,  the  defendants  ap- 
pealed to  the  General  Term. 

Cambreleng  &  Pyne,  for  appellants. 
H.  P.  Townsend,  for  respondent. 

BY  THE  COURT. — DALY,  F.  J. — It  is  undoubtedly  the  law 
that  when  a  man  appoints  a  person  to  do  an  act  for  him,  the 
latter  cannot  delegate  to  another  the  authority  conferred,  for 
the  maxim  is,  that  delegatus  non  potest  delegare.  But  in  the 
cases  in  which  this  maxim  has  been  applied  ; — in  which  it  has 
been  held  that  an  agent  or  trustee  could  not  confer  upon  an- 
other person  the  right  to  discharge  the  trust  or  duty  created  by 
his  appointment,  there  was  something  in  the  act  involving  per- 
sonal confidence,  or  a  trust  in  him,  or  in  his  skill,  or  which  called 
for  the  exercise  of  his  discretion,  or  of  his  judgment ;  something 
which  the  party  clothing  him  with  his  representative  character 
and  authority  was  willing  to  entrust  to  him,  but  which  it  did  not 
necessarily  follow  he  was  equally  willing  to  confer  upon  any 
other  person  whom  the  agent  or  trustee  should  think  proper  to 
appoint.  Thus  ill  The  Attorney-General  v.  Berryman  (2  Ves. 
Sen.,  643),  a  personal  estate  was  given  to  such  a  use  as  a  Dr. 
Berryman  should  appoint,  and  he,  instead  of  exercising  his  own 
judgment  and  discretion  in  the  matter,  directed  the  money  to 


NEW  YOEK— MAECH,  3866. 


Grinnell  v.  Buchanan. 


be  applied  as  his  brother,  another  Dr.  Berry  man,  should  direct; 
which  the  Court  held  he  could  not  do.  In  Ingram  v.  Ingrain, 
(2  Atk.,  88),  a  husband,  by  the  terms  of  a  marriage  settlement, 
was  authorized  to  dispose  of  the  reversionary  interest  in  a  copy- 
hold estate,  in  such  proportions,  among  the  issue  of  the  mar- 
riage, as  he  should  think  fit ;  which  power  was  to  be  executed 
during  his  life  time,  or  by  will  at  his  death  ;  and  by  his  will  he 
directed  that  it  should  be  disposed  of  between  his  son  and 
daughter  in  such  proportion  as  his  wife  should  think  proper ; 
and  the  Lord  Chancellor  held  that  the  power  was  one  that 
could  be  executed  only  by  the  husband,  and  could  not  be  dele- 
gated to  the  wife. 

In  Alexander  v.  Alexander  (2  Yes.  Sr.,  640),  Lord  HAKD- 
WICKE  said,  in  reference  to  a  discretionary  power :  "  If  there  is 
a  power  to  A.  of  personal  trust  and  confidence  to  exercise  his 
judgment  and  discretion,  A.  cannot  say  this  shall  be  appointed 
by  the  discretion  of  B.,  for  delegatus  non  potest  delegare.  In 
Catlin  v.  Bell  (4  Camp.,  184),  the  defendant  was  master  of  a 
ship  trading  to  the  West  Indies,  and  the  plaintiff  entrusted  to 
him  a  quantity  of  millinery  goods,  which  he  undertook  to  sell 
for  her.  The  master  not  being  able  to  sell  the  goods  in  the 
island  to  which  they  were  destined,  sent  them  by  another 
person  to  a  place  in  Central  America,  for  a  market,  where 
they  were  destroyed  by  an  earthquake ;  and  Lord  ELLBN- 
BOKOUGH  held  that  a  special  confidence  having  been  reposed  in 
the  master  with  respect  to  the  sale  of  the  goods,  be  could  not 
entrust  them  to  another  person.  In  Sally  v.  Rathbone  (2  M.  & 
Selw.,  298),  the  plaintiffs  consigned  a  quantity  of  merchandise 
to  their  factors  in  Liverpool.  The  factors  being  embarrassed, 
and  not  having  funds  wherewith  to  pay  the  freight  and  duties, 
made  an  arrangement  whereby  another  house  in  Liverpool  took 
part  of  the  consignment,  paid  the  freight  and  duties,  and  sold 
the  goods,  with  an  understanding  between  them  and  the  plain- 
tiffs' factors,  that  the  commission  upon  the  consignment  should 
be  divided  between  the  two  houses  ;  and  Lord  ELLENBOROUGH 
held,  that  this  act  on  the  part  of  the  factors  was  wholly  without 
authority,  and  a  fraud  upon  the  consignors  ;  and  in  the  case  of 
Coohran  v.  Irlam  (Id.,  301,  note  a),  which  in  its  general  features 
resembled  the  foregoing,  the  same  judge  said,  "  A  principal 


542  COURT  OF  COMMON  PLEAS. 

Grinnell  v.  Buchanan. 

employs  a  broker  from  the  opinion  he  entertains  of  his  personal 
skill  and  integrity,  and  a  broker  has  no  right,  without  notice, 
to  turn  his  principal  over  to  another,  of  whom  he  may  know 
nothing.  In  Tonkin  v.  Fuller  (3  Doug.,  300),  Lord  MANSFIELD 
said  that  a  common  letter  of  attorney  did  not  enable  the  attor- 
ney to  assign ;  and  in  a  very  early  case,  Deering  v.  Harrington 
(3  Keb.  K.,  304 ;  1  Mod.,  11 3),  C.  J.  SCALES  pointed  out  the  distinc- 
tion between  the  assignment  of  a  duty  and  of  a  benefit,  a  distinc- 
tion which  interprets  -and  lies  at  the  foundation  of  the  rule  under 
consideration. 

To  the  same  general  effect  are  the  principal  elementary 
writers.  The  office  and  duties  of  a  trustee,  says  HILL,  being 
matters  of  confidence,  cannot  be  delegated  by  him  to  another 
(Hill  on  Trustees,  p.  175,  Am.  ed.).  One  agent  cannot  lawfully 
nominate  and  appoint  another  to  perform  the  subject  of  his 
agency  (Brown's  Maxims,  p.  385).  One  who  has  authority  to 
do  an  act  for  another,  must  execute  it  himself ;  for  being  a  trust 
and  confidence  reposed  in  the  party,  it  cannot  be  assigned  to 
a  stranger,  whose  integrity  and  ability  were  not  so  well 
thought  of  (Bacon's  Abr.,  Authority  D).  A  delegated 
authority  can  be  executed  only  by  the  person  to  whom  it  is 
given,  the  confidence  being  personal  (Paley  on  Agency,  175). 
Agency  is  generally  a  personal  trust  and  confidence  which  can- 
not be  delegated,  for  a  principal  employs  the  agent  from  the 
opinion  which  he  has  of  his  personal  skill  and  integrity  (2  Kent's 
Com.,  633). 

These  authorities  sufficiently  indicate  the  nature  and  extent 
of  this  rule,  and  show  that  it  has  no  application  to  a  case  like 
the  present.  Buchanan  agreed  to  pay  the  one  hundred  dollars 
to  Eaynor  &  Perry,  if  they  should,  within  the  time  limited, 
effect  the  arrangement,  which  they  did,  and  by  the  very  terms 
of  the  agreement,  it  was  understood  that  the  money  was  to  be 
paid  as  a  bonus  to  the  party  who  should  do  what  Buchanan  de- 
sired to  have  done.  If  any  such  relation  as  that  of  agency,  or 
any  other  relation  involving  personal  trust  and  confidence  ex- 
isted under  this  agreement  on  the  part  of  Raynor  &  Perry,  it 
was  fully  exercised  and  discharged  when  they  effected  the 
arrangement  by  which  the  tenement  houses  were  taken  down 
and  dwelling  houses  erected  in  their  stead.  There  was  nothing 
then  to  be  done  by  them  but  to  receive  the  one  hundred  dol- 


NEW  YOKE— MAKCH,   1866.  543 


Grinnell  v.  Buchanan. 


lars  and  pay  it  over  to  Bebee  &  Brother.  The  conditions  upon 
•which  Buchanan  had  agreed  to  pay  it  had  been  fulfilled,  and 
all  that  remained  was  a  right  of  action  in  Raynor  &  Perry,  to 
be  prosecuted  for  the  benefit  of  Bebee  &  Brother.  It  was 
simply  a  debt,  and  the  assignment  of  it  to  the  party  beneficially 
entitled  to  it,  in  no  way  conflicted  with  the  rule  preventing  an 
agent  or  trustee  from  transferring  the  personal  confidence  and 
trust  to  another  reposed  in  him  by  his  appointment. 

Raynor  &  Ferry  were  trustees  of  an  express  trust,  according 
to  the  construction  put  by  the  Court  of  Appeals  in  Considerant 
v.  Brisbane  (22  K  Y.  R.,  389),  upon  the  113th  section  of  the 
Code,  which  excepts  the  trustees  of  an  express  trust  from  the 
general  provision  in  the  110th  section,  declaring  that  every 
action  must  be  prosecuted  in  the  name  of  the  real  party  in  in- 
terest, and  which  defines  such  a  trustee  to  be  one,  with  whom 
or  in  whose  name,  a  contract  is  made  for  the  benefit  of  another. 
But  for  this  provision,  and  the  construction  put  upon  it,  Bebee 
&  Brother,  or  the  plain  tiff,  as  their  assignee,  might  have  brought 
the  action  in  their  own  name,  without  any  assignment  from 
Raynor  &  Perry.  The  general  rule  before  the  Code,  though 
there  was  some  conflict  in  the  authorities,  is  thus  laid  down  in 
Browne  upon  Actions  at  Law  (pp.  102,  103):  "The  action 
should  be  brought  by  the  party  with  whom  the  contract  was  in 
law  made,  that  is,  the  one  from  whom  tho  consideration  in  fact 
moved,  *  *  *  for  whenever  the  consideration  niQves  from 
a  party,  though  the  promise  be  made  to  another ;  yet,  he  from 
whom  the  consideration  moves,  may  be  plaintiff,"  and  here 
the  consideration,  which  chiefly  induced  the  promise,  the  tak- 
ing down  of  the  tenement  houses,  and  the  erection  of  dwelling 
houses  in  their  stead,  moved  from  Bebee  &  Brother,  to  whom 
though  not  named,  Buchanan  meant  that  the  one  hundred  dol- 
lars should  be  paid.  "  If,"  said  Chief.  Justice  EYRE,  in  The 
Feltmakers'  Company  v.  Dams  (1  Bos.  &.  Pul.,  102),  "  a  prom- 
ise is  made  to  A.,  for  the  benefit  of  B.,  and  an  action  is  brought 
by  B.,  the  promise  actually  made  to  A.  may  be  given  in  evi- 
dence under  the  declaration  ;  and  to  the  same,  effect  are  numer- 
ous authorities  (Cooker  v.  Child,  2  Lev.,  74 ;  Gilby  v.  Copley, 
3  id.,  139  ;  Piggot  v.  TJtompson,  3  Boa.  &  Pul.,  147 ;  Buckbee  v. 
Brown,  21  Wend.,  110 ;  Baylcy  v.  The  Onondaga  Mutual  Ins. 
Co.,  6  Hill,  476 ;  GUmore  v.  Pope,  5  Mass.,  491 ;  Tfo  Taunton 


544  COURT  OF  COMMON  PLEAS. 


Grinnell  v.  Buchanan. 


&  South  Boston  Turnpike  Co.  v.  Whiting,  It)  Mass.,  327 ; 
The  Commercial  BanJc  v.  French,  21  Pick.  R.,  486).  But  it 
was  held  by  WBIQHT,  J.,  in  delivering  the  Opinion  of  the  Court 
in  Considerantv.  Brisbane,  that  although  it  appear  upon  the 
face  of  the  writing  that  the  person  to  whom  the  promise  was 
made  was  acting  in  a  representative  character,  and  the  name 
of  the  principal  was  disclosed,  and  there  was  nothing  to  indi- 
cate that  he  had  any  interest  in  the  subject  matter,  he  was 
nevertheless  within  the  meaning  of  the  Code,  a  trustee  of  an 
express  trust,  in  whose  name  the  action  must  be  brought.  The 
promise  jn  that  case  was  to  pay  C.,  as  executive  agent  of  a  com- 
pany, a  sum  of  money  in  consideration  of  a  certain  amount  of 
the  stock  of  the  company  which  the  defendant  was  to  receive, 
and  this,  in  the  judgment  of  the  Court,  made  the  agent  a  trus- 
tee of  an  express  trust.  I  had  supposed  that  the  object  of  the 
general  provision  of  the  Code,  that  the  action  should  be  brought 
in  the  name  of  the  real  party  in  interest,  was  to  enlarge  the 
law  in  this  respect,  and  to  do  away  with  nominal  parties,  except 
where  they  were  charged  with  some  active  trust  or  other  duty, 
that  made  it  essential  that  the  action  should  be  brought  in  their 
name ;  in  this  respect,  adopting  the  more  rational  rule  which 
prevails  in  courts  of  equity  (Calvert  on  Parties  to  Suits  in 
Equity,  229,  230,  218),  as  contra-distinguished  from  the  tech- 
nical one  that  had  grown  up  in  the  courts  of  law  ;  but  the 
effect  whjch  has  been  given  by  this  decision  to  the  section 
which  excepts  a  trustee  of  an  express  trust,  will  make  the  law, 
in  fact,  more  technical  than  it  was  before ;  and  with  the  greatest 
respect  for  the  judgment  of  the  highest  Court  in  the  State,  I 
think  they  have  given  a  construction  to  that  section  which  the 
legislature  was  far  from  intending,  and  which  will  require  here- 
after suits  to  be  brought  in  the  name  of  agents  or  others  acting 
in  a  representative  character,  which,  before  the  Code,  might  be 
brought  in  the  name  of  their  principals.  The  construction  put 
upon  this  section  by  Justice  DENIO  in  his  dissenting  opinion, 
and  by  Justice  WOODRUFF  in  the  Court  below,  would,  in  my 
judgment,  have  made  it  harmonious  with  the  law  as  it  pre- 
viously existed,  and  at  the  same  time  carried  out  what  was 
manifestly  the  design  of  the  Legislature. 

The  decision  in  Considerant  v.  Brisbane,  however,  does  not 
reach  the  present  case,  as  Raynor  &  Perry  have  assigned  the 


.NEW    TOEK— MARCH,   1866.  545 


Grinnell  v.  Buchanan. 


legal  interest  which  they  had  in  the  debt,  to  the  assignee  of  the 
parties  beneficially  entitled  to  it.     As  they  were  mere  naked 
trustees,  there  was  nothing  in  the  rule  which  I  have  previously 
considered  to  prevent  them  doing  so,  and  it  only  remains  to 
enquire  whether  there  is  any  other  rule  of  law  to  prevent  the 
making  of  such  an  assignment,  or  if  made,  which  would  pre- 
vent the  assignee  from  bringing  an  action  to  recover  the  debt 
in  his  own  name.      At  the  common  law  a  debt  was 'not  assign- 
able, nor  any  right  in  action  ( Year  Books^  2J  Edw.   IY,  84)  ; 
nothing  in  fact  but  a  thing  actually  existing  or  in  possession, 
the  reason  for  which,  according  to  the   older  writers,  was  to 
prevent    champerty   and   maintenance.      In  the  language  of 
Lord  COKE,  it  was  "for  the  avoidance  of  maintenances,  the 
suppression  of  rights,  and  the  stirring  up  of  suits,"  and  there- 
fore he  says,  "  nothing  in  action,  entry  or  reentry,  can  be  granted 
over,  for  under  color  thereof  pretended  titles  might  be  granted 
to  great  menx  whereby  right  might  be  trodden .  down,  and  the 
weak  oppressed,  which  the  common  law  forbiddeth,  as  for  men 
to  grant  before  they  be  in  possession  "  (Coke  Litt.,  214  a,  §  347). 
However  politic  or  necessary  such  a  rule  as  this  may  have  been 
in  the  state  of  society  in  which  it  was  adopted,  it  was  not 
suited  to  the  wants  of  a  more  advanced  period,  and  it  would 
long  since  have  been  among  the  things  of  the  past,  if  means 
had  not  been  devised  to  evade  the  effect  of  it.     A  similar  rule 
existed,  according  to  POTHIER,  in  the  old  French  law,  but  for  a 
more  subtle  and  technical  reason  than  that  assigned  by  Lord 
COKE,  that  is,  that  the  obligation  of  the  debtor  was  made  to  the 
creditor,  and  that  the  creditor  could  not,  by  his  act,  make  the 
debtor  obliged  to  another.     But  when  the  inconvenience  of  the 
rule  came  to  be  felt,  the  French  lawyers,  he  says,   devised  a 
mode  by  which  it  could  be  nominally  maintained  and  its  effect 
avoided,  by  declaring  that  the  creditor  could   make  another 
person  his  mandatory  to  exercise  his  right  of  action  in   his 
name,  but  at  the  risk  and  for  the  benefit  of  the  mandatory 
(Traittdu  Contrat  de  Vente,  partie  6,  chap.  3,  art.  1 ;  (Euvres  de 
Pothier,  torn.  3,  p.  329,  ed.  of  Paris,  1821),  but  finally  this  subtlety 
even  was  abandoned  and  the  rule  adopted  that  the  assignee  of 
a  debt  succeeded  to  all  the  rights  of  the  assignor  (Troplong  des 
Privil.  et  Hypoth,  torn.  1  n.,  310  ;  id.  dela  Vmte,  n.  879  to  882  ; 
n.,  906,  913 ;  Code  Civ.  Liv.  3,  tit.  6,  chap.  2,  §  412).  For  sim- 
35 


546  COURT  OF  COMMON  PLEAS. 

Grinnell  v.  Buchanan. 

ilar  reasons  the  courts  of  common  law  relaxed  this  rigid  rule. 
They  held  that  as  the  assignment  of  a  debt  or  obligation  was 
good  in  equity,  parties  ought  not  to  be  put  to  the  expense  of  go- 
ing into  a  court  of  equity,  and  they  adopted  the  expedient  of  the 
French  lawyers,  by  allowing  an  action  for  their  recovery  to  be 
brought  in  the  name  of  the  assignor,  for  the  benefit  of  the  as- 
signee, subject  to  all  equities  between  the  assignor  and  the 
debtor,  existing  before  the  debtor  had  notice  of  the  assignment 
( Winch  v.  Keeley,  1 T.  R.,  621, 622 ;  Bacon's  Abm.  Assignment, 
A,  and  note),  and  this  continued  to  be  the  rule  at  law'down  to 
the  adoption  of  the  Code.  But  the  rule  of  the  common  law  never 
prevailed  in  the  Court  of  Chancery.  The  propriety  of  the 
assignments  of  debts  and  obligations,  and  of  the  right  to  enforce 
them,  was  recognized  in  that  Court,  unless  it  was  made  to  ap- 
pear that  the  object  of  the  assignment  was  champerty  or  main- 
tenance. The  assignment  of  a  chose  in  action  was  in  equity 
perfected  by  the  service  of  nqtice  of  it  upon  the  debtor,  which 
operated  as  a  constructive  transfer  of  the  possession,  and  if  any 
circumstances  existed  to  impede  the  assignee's  remedy  in  a 
court  of  law,  he  might  enforce  the  debt  or  obligation  by  a  suit 
in  equity  in  his  own  name;  unless  in  cases  where  the  instrumen- 
tality of  a  court  of  law  was  indispensable,  as  in  ascertaining  un- 
liquidated damages,  which  could  be  fixed  only  by  the  verdict  of 
a  jury  (Adams'1  Doctrine  of  Equity,  54, 55, 161 ;  Story's  Equity 
Jurisprudence,  1040,  1049,  1055,  1057,  105?,  a).  Story  says  in 
fact  that  the  assignee  might  sue  in  a  court  of  equity,  even 
where  there  was  no  impediment  to  his  remedy  at  law,  if  the 
claim  were  for  a  fixed  sum  (id.,  1057,  1057  a,  6),  but  this  is 
more  doubtful. 

In  this  State,  the  distinction  between  legal  and  equitable  tri- 
bunals ; — between  actions  at  law  and  suits  in  equity,  has  been 
abolished,  and  we  have  but  one  form  of  procedure,  whether  the 
relief  sought  be  legal  or  equitable,  or  both.  There  is,  therefore, 
with  us  no  longer  any  occasion  for  adhering  to  the  rule  of  the 
courts  of  law,  that  this  action  must  be  brought  in  the  name  of 
the  assignor,  for  the  benefit  of  the  assignee,  but  we  may  adopt 
the  rule  of  the  Court  of  Chancery,  that  the  assignee  may  sue 
in  his  own  name.  •Where  a  choice  is  to  be  made  between  the 
form  of  proceedings  at  law  or  in  equity,  that  one  is  to  be  pre 
ferred  which  is  the  most  direct,  consistent  and  comprehensive, 


NEW  YORK— MARCH,  1866.  547 

De  Rutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Company. 

and  in  this  respect  the  rule  which  prevailed  in  courts  of  equity 
is  a  less  technical  and  a  better  one  than  that  which  existed  in 
the  courts  of  law.  If  the  cause  of  action,  therefore,  is  one  upon 
which  a  party  might  have  sued  in  his  own  name  in  equity,  he 
should  sue  in  the  same  manner  now,  and  as  the  debt  or  obliga- 
tion which  arose  under  this  contract  was  assignable  in  equity, 
and  the  legal  interest  which  was  in  Raynor  &  Perry,  and 
the  equitable  interest  which  was  in  Bebee  &  Brother,  have 
passed  by  assignment  to  the  plaintiff,  the  action  was  properly 
brought  in  his  name  (Hook  v.  Kinnea/r,  3  Swans.  R.,  418,  n}. 

It  does  not  appear  by  the  case  that  the  point  was  raised 
upon  the  trial  in  respect  to  the  presentment  of  the  claim,  or  any 
exception  taken,  and  it  is  therefore  unnecessary  to  consider  it. 

The  judgment  should  be  affirmed. 


EDWARD  DE  RUTTE  v.  THE  NEW  YORK,  ALBANY  &  BUFFALO 
ELECTRIC  MAGNETIC  TELEGRAPH  COMPANY. 

The  contract  for  the  transmission  of  a  telegraphic  message  is  not  necessarily 
made  with  the  person  to  whom  it  is  sent.  If  the  person  to  whom  it  is  ad- 
dressed is  the  one  interested  in  its  correct  and  diligent  transmission,  and  by 
whom  the  expense  of  sending  it  is  borne,  he  will  be  regarded  as  the  one 
with  whom  the  contract  is  made. 

The  business  of  telegraph  companies,  with  that  of  common  carriers,  is  in  the 
nature  of  a  public  employment,  as  they  hold  out  to  the  public  that  they  are 
ready  and  willing  to  transmit  intelligence  for  any  one  upon  the  payment  of 
their  charges,  and  not  for  particular  persons  only. 

Common  carriers  are  held  to  the  responsibility  of  insurers  for  the  safe  deliv- 
ery of  the  property  intrusted  to  their  care  upon  grounds  of  public  policy  ; — 
to  prevent  fraud  or  collusion  with  thieves,  and  because  the  owner  having 
surrendered  up  the  possession  of  his  property*,  is  generally  unable  tx>  show 
how  it  was  lost  or  injured. 

These  reasons  do  not  apply  to  telegraph  compnnies,  and  they  arc  not  held  to 
the  responsibility  of  insurers  for  the  correct  transmission  find  delivery  of 
intelligence.  As  the  value  of  their  service,  however,  consists  in  the 


548  COURT  OF  COMMON  PLEAS. 

De  Rutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Company. 

being  correctly  and  diligently  transmitted,  they  necessarily  engage  to  do  so, 
and  if  there  is  an  unreasonable  delay,  or  an  error  committed,  it  is  presumed 
to  have  originated  from  their  negligence,  unless  they  show  that  it  occurred 
from  causes  for  which  they  are  not  answerable. 

The  causes  which  will  excuse  them  commented  upon  and  considered. 

They  may  qualify  their  liability  to  the  effect  that  they  will  not  be  answerable 
far  errors  unless  a  message  is  repeated,  but  this  condition  must  be  brought 
home  to  the  knowledge  of  the  person  who  brings  the  message  for  transmis- 
sion. 

Where  a  telegraph  company  is  paid  the  whole  compensation  for  the  transmis- 
sion of  a  message  to  a  place  beyond  their  own  lines,  with  which  they  are 
in  communication  by  the  agency  of  other  companies,  they  will  be  regarded 
as  engaging  that  the  message  will  be  transmitted  to,  and  delivered  at  that 
place,  unless  there  is  an  express  stipulation  to  the  contrary,  or  the  circum- 
stances are  such  as  to  show  that  the  understanding  of  the  contracting  par- 
ties was  otherwise. 

Where  a  merchant  in  San  Francisco  receives  a  telegraphic  message  from  New 
York,  which  leads  him  into  a  purchase  involving  inevitable  pecuniary  loss, 
which  would  not  have  occurred  but  for  an  error  made  in  the  transmis- 
sion of  the  message,  he  is  not  compelled  to  seek  through  an  extensite  chain 
of  telegraphic  communication  to  ascertain  where  the  error  was  made,  but  the 
company  to  whom  the  message  was  originally  given,  and  to  whom  the  whole 
compensation  was  paid  for  its  transmission,  is  answerable.  Having  peculiar 
facilities  the  obligation  is  upon  it  to  ascertain  where  and  when  the  error  oc- 
curred, and  to  fix  the  ultimate  responsibility  where  it  properly  belongs. 

The  defendant's  line  of  telegraph  extended  from  New  York  to  Buffalo,  where 
it  connected  with  other  lines  and  a  pony  express  to  San  Francisco.  The 
defendants  received  the  entire  compensation  for  transmitting  a  message  to 
San  Francisco,  which  was  correctly  sent  by  their  own  line  and  by  the  con- 
necting lines  as  far  as  St.  Louis,  but  an  important  mistake  was  made  be- 
tween that  point  and  San  Francisco, — Held,  as  nothing  was  said  about  the 
defendant  being  answerable  only  for  the  correct  transmission  of  the  message 
along  their  own  line,  as  they  received  the  whole  amount  that  was  asked  to 
send  it  to  San  Francisco,  without  communicating  by  what  lines  it  would  be 
sent,  or  any  other  particulars  as  to  the  mode  or  manner  of  its  transmission, 
that  they  took  upon  themselves  the  whole  charge  of  sending  it,  and  were 
answerable  for  the  error. 

Independent  of  any  question  of  contract,  if  a  person  is  put  to  loss  and  damage 
through  the  negligence  of  a  telegraph  company  in  transmitting  to  him  an 
erroneous  dispatch,  the  company  would  be  liable  to  him  in  an  action  for 
negligence,  and  if  they  received  the  whole  compensation  for  sending  it,  they 
would  be  liable  in  such  an  action  though  the  error  was  made  by  one  of  the 
companies  through  whom  they  transmitted  it. 

The  plaintiff's  agent  in  Bordeaux  obtained  from  a  commercial  house  in  that 
city  an  order  for  the  plaintiff,  a  commission  merchant  in  San  Francisco,  to 


NEW  YORK— MARCH,  1866.  549 

De  Rutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Company. 

purchase  for  them  and  ship  from  San  Francisco,  a  cargo  of  wheat,  at  a  cer- 
tain price.  The  plaintiff's  agent  prepared  a  telegram  in  these  words :  "  Ed- 
ward De  Rutte,  San  Francisco.  Buy  for  Callaf  den  &  Labourdette,  bankers, 
a  ship  load  of  five  to  six  hundred  tons  white  wheat,  first  quality,  extreme 
limit  twenty-two  francs  the  hectolitre,  landed  at  Bordeaux ;  same  conditions 
as  the  Monod  contract.  Th.  De  Rutte," — which  the  plaintiff's  agent  sent  in 
a  letter  to  a  commercial  house  in  New  York  with  instructions  to  send  it  to 
the  plaintiff  at  San  Francisco  in  the  quickest  manner,  and  to  charge  the 
expense  to  the  plaintiff.  The  house  in  New  York  sen  tit  by  their  clerk  to  the 
defendants'  office,  who  paid  to  the  defendants  the  entire  compensation  for  its 
transmission  by  telegraph  to  San  Francisco.  When  delivered  to  the  plaintiff 
in  San  Francisco  several  errors  had  been  made  in  its  transmission,  the  most 
important  of  which  was  a  change  from  twenty-<wo  to  twenty-^w  francs  the 
hectolitre.  The  plaintiff  was  not  misled  as  to  the  other  errors,  and  knew 
what  was  meant,  but  the  words  twenty-five  he  assumed  to  be  correct.  Grain 
could  be  purchased  at  that  time  in  San  Francisco,  at  from  twenty-four  to 
twenty-five  francs  the  hectolitre,  and  he  accordingly  chartered  a  vessel  and 
purchased  a  cargo.  But  before  the  vessel  sailed,  he  received  via  New  York 
the  letter  which  his  agent  had  sent,  when,  discovering  the  mistake,  he  resold 
the  wheat  and  got  rid  of  the  charter  party,  incurring  by  the  transaction  a 
loss  of  over  two  thousand  dollars,  for  which  he  sued  the  defendant,  and  re- 
covered. 

Held,  that  the  defendant's  contract  for  the  transmission  of  the  message  was 
with  the  house  in  Bordeaux,  not  with  the  house  in  New  York,  and  the  ac- 
tion was  properly  brought  in  his  name. 

That  it  was  not  an  act  of  cooperating  negligence  for  him  to  act  upon  the 
dispatch,  without  having  it  repeated,  after  he  had  discovered  three  errors  in 
it.  That  they  were  not  of  such  a  nature  as  should  have  led  him  to  treat  the 
whole  dispatch  as  unreliable^  and  that  he  was  justified  in  assuming  that  the 
word  "  twenty-five  "  had  been  correctly  transmitted. 

That  as  the  error  in  the  dispatch  was  the  cause  of  his  purchasing  the  wheat  at 
the  price  which  he  did,  and  as  the  inevitable  loss  which  occurred  was  the  direct 
and  immediate  consequence  of  the  error,  that  the  loss  he  sustained  was 
proper  measure  of  damages. 

APPEAL  by  the  defendant  from  a  judgment  of  the  Special 
Term  on  the  verdict  of  a  jury. 

The  action  was  brought  against  the  defendants  for  damages 
for  the  incorrect  transmission  of  a  message  sent  from  New 
York  by  the  defendants'  line  to  the  plaintiff  in  San  Francisco. 

The  cause  was  tried  before  BRADY,  J.,  and  a  j  ury.  It  appeared 
upon  the  trial  that  the  plaintiff  was  a  commission  merchant, 
doing  business  in  San  Francisco,  California.  Uc  had  a  brother, 
Theophihiij  De  Rutte,  who  was  his  agent  and  correspondent  at 
Bordeaux,  in  France,  but  who  had  otherwise  no  interest  in  the 


550  COUKT  OF  COMMON  PLEAS. 

De  Rutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Company. 

plaintiff's  business.  T.  De  Rutte  procured  from  Callarden  & 
Labourdette,  bankers,  in  Bordeaux,  an  order  for  the  plaintiff  to 
purchase  for  them  a  cargo  of  wheat  in  California,  at  the  ex- 
treme limit  of  twenty-two  francs  the  hectolitre,  which  is  the 
French  official  measure  for  grain.  The  plaintiff  was  to  pur- 
chase and  ship  the  grain  to  Callarden  &  Labourdette 'immedi- 
ately, his  commission  and  the  mode  of  his  reimbursement  to  be 
the  same  as  in  a  previous  order  which  he  had  received  from 
another  Bordeaux  firm,  one  of  the  partners  in  which  was 
named  Monod.  Upon  receiving  the  order  Theophilus  De  Rutte 
prepared  a  telegram  in  these  words : 

"Edward  De  Rutte,  San  Francisco.  Buy  for  •  Callarden  & 
"  Labourdette,  bankers,  a  ship  load  of  five  to  six  hundred  tons 
"  white  wheat,  first  quality,  extreme  limit  twenty-two  francs 
"  the  hectolitre,  landed  at  Bordeaux,  same  conditions  as  the 
"Monod  contract.  TH.  DE  RUTTE," 

— and  inclosed  it  in  a  letter  to  Jules  Lorrimer,  a  merchant  of 
New  York,  with  instructions  to  send  it  to  the  plaintiff  in  the 
quickest  manner,  and  to  debit  the  plaintiff  with  the  charges. 
A  clerk  of  Lorrimer. copied  the  message  upon  a  slip  of  paper 
and  took  it  to  the  telegraph  office  of  the  defendants,  where  he 
gave  it  to  a  clerk,  to  whom  he  paid  twenty-one  dollars  and  fifty 
cents  for  its  transmission  to  San  Francisco.  The  defendants 
had  printed  blanks  in  their  office,  upon  which  messages  were 
written,  containing  a  notice,  that  to  guard  against  mistakes, 
every  message  of  importance  ought  to  be  repeated,  for  which 
half  the  price  would  be  charged,  and  that  they  would  not  be 
responsible  for  mistakes  or  delays  in  the  transmission  of  unre- 
peated  messages,  from  whatever  cause  they  may  arise.  It  did 
not  appear  that  any  such  blanks  were  used  in  this  case ;  nor 
was  it  shown  that  Lorrimer's  clerk  or  his  principal  knew  of 
the  regulation. 

The  defendant's  line  extends  from  New  York  to  Buffalo, 
where  it  connects  with  other  lines  and  a  pony  express  to  San 
Francisco.  The  message  was  transmitted  correctly  by  the  de- 
fendant's line  and  by  the  connecting  lines  to  St.  Louis,  but 
when  delivered  to  the  plaintiff  at  San  Francisco  there  were 
Beveral  errors.  Th.  De  Rutte  was  changed  to  Thos.  De  Rutte  ; 
Monod  contract  to  monied  contract ;  hectolitre  to  preiorlitiere ; 
and  twenty-two  to  twenty-five  francs. 


NEW  YORK— MARCH,   1866.  551 

De  Rutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Company. 

It  was  in  evidence  that  the  plaintiff  was  not  misled  as  to 
three  of  the  alterations  in  the  dispatch.  He  understood  the 
abbreviation  Thos.  to  mean  Theop'hilus,  the  words  monied  con- 
tract to  mean  Monod  contract,  and  pretorlitiere  to  mean  hecto- 
litre. The  words  twenty-five  francs,  however,  he  assumed  to 
be  correct ;  but  before  acting  upon  the  message,  he  tried,  as  he 
said,  to  get  a  copy  of  the  dispatch  from  the  Telegraph  Company 
at  San  Francisco,  but  they  stated  that  they  could  not  furnish 
it.  Grain  could  be  purchased  in  San  Francisco  at  that  time  at 
a  price  which  would  admit  of  its  being  landed  at  Bordeaux, 
charges  included,  at  twenty -four  to  twenty-five  francs  the  hec- 
tolitre, but  not  at  twenty-two ;  and  the  plaintiff  accordingly 
purchased  the  requisite  quantity,  and  chartered  a  vessel  for  its 
shipment  to  Bordeaux,  when  he  received  from  New  York, 
twenty  days  after  the  dispatch,  the  letter  which  his  brother 
had  written,  advising  him  that  the  extreme  limit  was  twenty- 
two  instead  of  twenty-five  francs.  As  a  further  assurance,  on 
receiving  this  letter,  he  had  the  dispatch  repeated,  after  which 
he  sold  the  wheat  at  the  cost  price,  less  commission,  storage 
and  interest,  and  after  several  days'  effort  he  succeeded  in  get- 
ing  rid  of  the  charter-party  by  the  payment  of  sixteen  hundred 
dollars  in  gold ;  and  he  paid  the  wharfage  of  the  vessel,  and 
the  brokerage  fees  upon  the  re-charter,  making  in  all  the  sum 
of  two  thousand  and  ninety-four  dollars  and  fifty-one  cents  fees 
upon  the  re-charter,  making  in  all,  with  the  commissions,  stor- 
age and  interest,  the  sum  of  two  thousand  and  ninety-four  dol- 
lars and  fifty-one  cents. 

The  defendant's  counsel  moved  for  a  nonsuit  on  the  grounds : 

First. — That  the  defendant  could  not  be  held  liable,  except 
upon  proof  of  a  contract  to  transmit  the  dispatch  from  New 
York  to  San  Francisco,  and  that  the  contract  proved  was  to 
transmit  the  dispatch  from  New  York  to  Buffalo,  which  is  the 
western  terminus  of  defendant's  line,  and  there  deliver  it  to 
the  succeeding  line,  which  the  defendant  did  truly  and  cor- 
rectly in  all  respects  ;  and  that  the  defendant  was  not  liable  for 
any  mistake  or  error  in  the  transmission  of  said  dispatch  mndo 
by  any  of  the  succeeding  lines  west  of  Buffalo. 

Second. — That  there  was  no  common  law  liability  resting 
upon  the  defendant,  rendering  the  defendant  liable  for  errors 


552  COURT  OF  COMMON  PLEAS. 

De  Rutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Company. 

or  mistakes  made  in  the  transmission  of  tlie  dispatch  beyond 
its  own  line. 

Third. — That  to  enable  the  plaintiff  to  recover,  he  must  aver 
and  prove  a  contract  between  him  or  his  authorized  agent  and 
the  defendant  to  transmit  the  dispatch  in  question  from  New 
York  to  San  Francisco  ;  that  no  such  contract  was  proved  by 
the  evidence,  but  on  the  contrary,  it  appeared  that  the  only 
contract  which  defendant  made  was  with  Theo.  De  Rutte,  act- 
ing as  the  agent  or  on  account  of  Callarden  &  Labourdette  ; 
that  the  receipt  of  the  dispatch  by  the  defendant,  and  the  pay- 
ment of  the  charges  for  sending  the  message  through  to  San 
Francisco,  under  the  circumstances,  did  not  amount  to  a  con- 
tract by  defendant  to  transmit  the  same  beyond  the  defendant's 
line. 

Fourth. — That  plaintiff,  knowing  at  the  time  he  received 
the  dispatch  in  question,  that  the  same  had  been  erroneously 
transmitted  in  at  least  three  or  four  particulars,  had  no  right  to 
supply  the  supposed  or  known  errors  and  assume  that  the  rest 
of  the  dispatch  was  correct,  and  then  act  upon  it  in  the  manner 
he  did,  and  in  so  doing,  if  he  had  sustained  loss,  he  could  not 
recover.  He  should  have  refused  to  have  acted  upon  the  dis- 
patch, and  then,  in  case  of  loss,  a  recovery  might  be  had  by  the 
proper  person  against  the  party  committing  the  error. 

Fifth. — That  the  defendant  was  obliged,  by  the  llth  section 
of  the  statute  under  which  it  is  organized,  to  receive  the  same 
on  payment  of  the  usual  charges,  anc^was  bound  to  receive  the 
charges  of  the  succeeding  lines. 

Sixth. — That  the  rules  and  regulations  established  by  the 
defendant  were  binding  upon  the  plaintiff ;  and  as  the  message 
in  question  was  not  required  to  be  repeated,  and  the  defendant 
and  other  companies  transmitting  the  same  were  not  paid  for 
repeating  the  same,  in  order  to  insure  accuracy  in  its  transmis- 
sion, the  plaintiff  could  not  recover. 

The  Court  refused  to  grant  the  motion  of  nonsuit,  and 
directed  the  jury  to  find  a  verdict  for  the  plaintiff  for  two 
thousand  and  ninety-four  dollars  and  fifty-one  cents. 

From  the  judgment  entered  upon  the  verdict,  the  defendant 
appealed  to  the  General  Term.  . 

Edmonds  &  Miller,  and  Thomas  H.  Rodman,  for  appellant. 
Henry  A.  Cram  and  Edward  R.  Robinson,  for  respondent. 


YORK—  MARCH,  1866.  553 


De  Rutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Company. 

BY  THE  CotiET.  —  DALY,  F.  J.  —  We  are  asked  to  reverse  this 
judgment  upon  several  grounds.  The  first  ground  taken  by 
the  defendants  is,  that  their  contract  was  to  transmit  the  dis- 
patch from  New  York  to  Buffalo  and  deliver  it  there  to  the 
connecting  line,  which  they  did.  That  it  is  made  their  duty 
(Statute  Laws  of  New  York,  for  1844,  p.  395,  §  11),  to  receive 
messages  from  and  for  other  telegraph  lines,  and  that  where 
they  transmit  and  deliver  a  message  correctly  to  a  connecting 
line,  they  are  not  answerable  for  errors  occurring  afterwards. 

The  duty  which,  the  statute  imposes  is  as  much  for  the  bene- 
fit of  the  telegraph  companies  as  for  the  individuals  who  make 
use  of  them  ;  for  the  business  of  a  company  where  there  are 
several  connecting  lines  might  be  materially  diminished  if  any 
of  them  should  refuse  to  deliver  messages  to  or  to  receive  them 
from  it,  and  the  object  of  this  provision  therefore  was  mani- 
festly to  enable  new  companies  to  compete  with  established 
lines,  thus  preventing  the  evils  of  monopolies  and  of  combina- 
tions among  companies.  But  while  the  statute  makes  it  the 
duty  of  a  telegraph  company  to  receive  and  transmit  such  mes- 
sages, it  does  not  make  it  in  such  a  case  the  collecting  agent 
of  the  other  lines.  It  imposes  no  higher  duty  than  the  words 
express,  and  leaves  each  company  at  liberty  to  require  the 
payment  of  its  own  charges  before  it  either  delivers  or  trans- 
mits a  message.  Where  a  message  is  to  be  transmitted  through 
many  connecting  lines,  it  is  a  matter  of  convenience  to  be  en- 
abled to  pay  the  entire  clferge,  either  at  the  place  from  which 
it  is  sent,  or  at  the  place  where  it  is  received  ;  and  it  is  the  in- 
terest of  companies,  especially  where  there  are  competing  lines, 
to  make  arrangements  whereby,  upon  the  payment  to  them  of 
the  whole  charge,  a  message  may  be  sent  the  entire  length  of 
telegraphic  communication.  It  is  to  be  assumed  that  this  is 
the  case,  when  a  telegraphic  company  is  paid  for  the  transmis- 
sion of  a  message  to  a  place  beyond  their  own  lines,  with  which 
they  are  in  communication  by  the  agency  of  other  companies, 
and  they  must  in  such  a  case  be  regarded  as  undertaking  that 
the  message  will  be  transmitted  and  delivered  at  that  place. 

The  same  rule  must  be  applied  to  them  that  is  applied  to  a 
common  carrier  who  receives  the  whole  compensation  for  the 
carriage  of  a  package  addressed  to  a  place  beyond  the  limits 
of  his  own  route;  that  is,  that  he  engages  for  the  due  delivery 


554  COUKT    OF    COMMON    PLEAS. 

De  Rutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Company. 

of  the  package  at  the  place  of  destination,  unless  he  expressly 
limits  his  responsibility  to  his  own  route,  or  the  circumstances 
are  such  as  to  clearly  indicate  that  that  was  the  understanding 
of  the-  contracting  parties  (Weed  v.  Schenectady  and  Sara- 
toga Railroad,  19  Wend.,  534 ;  Muschamp  v.  Lancaster  and 
Preston  Railway  Company,  8  M.  &  Wels.,  421 ;  St.  John  v. 
Van  Santword,  25  Wend.,  660 ;  Id.,  6  Hill,  157  ;  Wilcox  v. 
Parmelee,  3  Sandf.  S.  C.  R.,  610).  By  taking  pay  in  advance 
for  the  whole  distances,  he  holds  himself  out  as  a  carrier  for 
the  entire  distances  (per  WALWORTH,  C.,  in  Van  Santvoord  v. 
St.  John,  supra).  Where  a  railroad  that  terminated  in  Boston 
took  a  wagon  at  Troy  that  was  to  be  carried  to  Burlington, 
HARRIS,  J.,  said  "  It  was  no  part  of  the  plaintiff's  business  to 
inquire  how  many  different  corporations  made  up  the  entire 
line  of  road  between  Troy  and  Burlington,  or,  having  ascer- 
tained it,  to  determine  at  his  peril  which  of  such  corporations 
had  been  guilty  of  the  negligence"  (Foy  v.  Troy  and  Boston 
Railroad  Co.,  24  Barb.,  382),  and  Lord  ABINGER,  in  Muschamp 
v.  The  Lancaster,  c&o.,  Railway,  supra,  remarked  that  it  was 
useful  and  reasonable  for  the  benefit  of  the  public  in  such  a 
case  that  it  should  be  considered  that  the  undertaking  was  to 
carry  the  parcel  the  whole  w'hy.  "  It  is  better,"  he  said,  "  that 
those  who  undertake  the  carriage  of  parcels  for  their  mutual 
benefit  should  arrange  matters  of  this  kind  inter  se,  and  should 
be  taken  each  to  have  made  the  others  their  agents."  All  of 
which  remarks  are  as  applicable  to  the  transmission  of  a  mes- 
sage as  to  the  carriage  of  a  parcel.  In  this  case  Lecour  told 
the  defendant's  clerk  to  send  the  message  to  California,  and 
asked  him  what  would  be  the  charge  for  sending  it  to  San 
Francisco,  to  which  the  clerk  answered  twenty-one  dollars  and 
fifty  cents,  which  Lecour  paid,  and  this,  prima  facie,  was  suf- 
ficient to  show  that  the  defendants  engaged  to  send  it  to  San 
Francisco.  Whatever  contract  was  made  was  made  with  them, 
and  not  with  any  other  company.  There  was  nothing  said,  nor 
was  there  anything  to  indicate  that  they  were  to  be  answerable 
only  for  its  correct  transmission  along  their  own  line.  They 
received  the  whole  amount  that  was  asked  to  send  it  to  San 
Francisco  without  communicating  by  what  lines  it  would  be 
sent,  or  any  other  particulars  as  to  the  mode  or  manner  of  its 
transmission.  They  took  upon  themselves  the  whole  charge 


NEW  YOEK— MARCH,  1866.  555 

De  Eutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Company. 

of  sending  it,  and  what  arrangements  were  made^or  what  sum 
would  be  paid,  for  the  use  of  the  lines  in  connection  with 
them,  were  matters*  not  disclosed  to  the  party  interested  in  the 
transmission  of  the  message,  and  with  which,  consequently,  he 
had  nothing  to  do.  He  made  his  contract  with  them,  and  if 
injured  by  its  non-fulfilment,  he  has  a  right  to  look  to  them  for 
compensation  for  the  injury  sustained. 

The  next  objection  taken  by  the  defendants  is,  that  they  en- 
tered into  no  contract  with  the  plaintiff ;  that  they  made  their 
contract  with  Th.  De  Rutte,  who  sent  the  message,  acting  as 
the  agent  of  Callarden  &  Labourdette.  It  does  not  necessarily 
follow  that  the  contract  is  made  with  the  person  by  whom,  or 
in  whoee  name,  a  message  is  sent.  He  may  have  no  interest 
in  the  subject  matter  of  the  message,  but  the  party  to  whom  it 
is  addressed  may  be  the  only  one  interested  in  its  correct  or 
diligent  transmission ;  and  where  that  is  the  case,  he  is  the  one 
with  whom  the  contract  is  made.  The  business  of  trans- 
mitting messages  by  means  of  the  electric  telegraph  is  like 
that  of  common  camel's  in  the  nature'  of  a  public  employment, 
for  those  who  engage  in  it  do  not  undertake  to  transmit  mes- 
sages only  for  particular  persons,  but  for  the  public  generally. 
They  hold  out  to  the  public  that  they  are  ready  and  willing  to 
transmit  intelligence  for  any  one  upon  the  payment  of  their 
charges,  and  when  paid  for  sending  it,  it  forms  no  part  of  their 
business  to  inquire  who  is  interested  in,  or  who  is  to  be  bene- 
fitted  by  the  intelligence  conveyed.  That  becomes  material 
only  where  there  has  been  a  delay  or  a  mistake  in  -the  trans- 
mission of  a  message,  which  has  been  productive  of  injury  or 
damage  to  the  person  by  whom,  or  for  whom,  they  were  em- 
ployed, and  to  that  person  they  are  responsible,  whether  he 
was  the  one  who  sent,  or 'the  one  who  was  to  receive  the  mes- 
sage. It  is  somewhat  analogous  to  the  question  which  arises 
when  goods  are  lost  upon  their  carriage,  whether  the  action 
against  the  carrier  is  to  be  brought  by  the  consignor  or  the 
consignee,  and  the  general  rule  upon  that  subject  is  that  the 
one  in  whom  the  legal  right  to  the  property  is  vested  is  the 
one  to  bring  the  action  ;  and  if  that  is  the  consignee,  the  con- 
signor in  making  the  contract  with  the  carrier,  is  regarded  as 
having  acted  as  the  agent  of  the  other  (Dawes  v.  Peck, 
8  T.  R.,  330;  GrHRth  v.  IngUdew,  C  S.  &  Rawlc,  429; 


556  COURT  OF  COMMON  PLEAS. 

De  Rutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Company. 

Freeman  v%  Birch,  1  Nev.  &  Mann,  420  ;  Dutton  v.  Sol- 
omnson,  3  Bos.  &  Pull.,  584 ;  Everett  v.  Salters,  15  Wend., 
474).  In  the  case  now  before  us,  it  could  make  no  difference 
to  Callarden  &  Labourdette  whether  the  message  was  correctly 
transmitted  or  not,  as  wheat  could  not  be  purchased  at  the 
time  in  San  Francisco  at  the  price  which  fliey  had  fixed,  and 
the  plaintiff  was  the  only  one  who  could  be,  and  who  was  af- 
fected injuriously  by  the  mistake  in  the  message.  The  error 
made  led  him  into  the  purchase  of  over  seventeen  thousand 
dollars'  worth  of  wheat,  upon  which  he  expected,  upon  the  as- 
sumption that  the  dispatch  was  correct,  to  make  his  ordinary 
commissions,  and  the  purchase,  when  the  mistake  was  discov- 
ered, proving  unavailable,  he  was  subjected  to  an  actual  loss  of 
more  than  two  thousand  dollars. 

Th.  De  Rutte  may,  for  certain  purposes,  be  regarded  as  the 
agent  of  Callarden  &  Labourdette  in  giving  the  order,  but  he 
was  more  especially  the  agent  of  the  plaintiff  in  procuring  it 
for  him,  and  it  is  a  decisive  circumstance  to  show  that  he  was 
acting  for  the  plaintiff,  and  that  the  dispatch  was  sent  upon  his 
account  and.  for  his  benefit,  that  Lorrimer,  the  correspondent 
in  New  York,  was  instructed  by  Theophilus  De  Rutte  to  charge 
the  plaintiff  with  the  expense  of  transmitting  it.  It  was  an  order 
given  to  a  commission  merchant  to  purchase  grain  for  a  foreign 
house,  if  it  could  be  bought  at  a  certain  price.  In  that  event  he 
could  have  had  an  interest' to  the  extent  of  his  commissions,  and 
that  he  might  have  the  earliest  intelligence  of  it,  and  secure, 
if  possible,  any  advantage  to  be  derived  from  it,  it  was  by  the 
direction  of  his  agent  and  correspondent  at  Bordeaux,  and  at 
his,  the  plaintiff 's  expense,  sent  by  telegraph  from  New  York 
to  San  Francisco.  When  the  defendants,  therefore,  undertook 
and  were  paid  for  sending  the  message,  their  contract  was  with 
the  plaintiff,  through  his  agents,  and  the  action  for  the  breach 
of  it  was  properly  brought  by  him  (Dryburg  v.  The  New  York 
and  Washington  Telegraph  Co.,  35  Penn.  R.,  298 ;  Eyre  v. 
Higbee,  15  How.,  46). 

But  if  we  were  to  leave  out  of  view  altogether  the  question 
with  whom  the  contract  was  made,  the  defendants  would  still 
be  liable  to  the  plaintiff  for  putting  him  to  loss  and  damage 
through  their  negligence  in  transmitting  to  him  an  erroneous 
message,  and  as  they  were  the  company  to  whom  the  whole 


YOKK—  MAKCH,   1866.  557 


De  Rutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Company. 

compensation  for  its  transmission  was  paid,  they  would  be 
liable  in  an  action  for  negligence,  though  the  error  or  mistake 
was  made  by  one  of  the  companies  through  whom  they  trans- 
mitted it.  It  has  been  frequently  held  that  the  owner  of  a 
vessel  is  liable  for  a  collision  resulting  from  negligence,  though 
his  vessel  at  the  time  was  under  the  control  of  a  pilot  acting 
under  an  independent  commission  from  the  State  ;  the  reason 
given  for  which  is,  that  it  is  more  convenient  and  more  con- 
formable to  the  general  spirit  of  the  law,  that  the  owner,  who 
has  had  the  benefit  of  the  voyage,  should  seek  his  remedy 
against  the  pilot,  than  that  the  injured  party  should  be  turned 
over  to  an  action  against  the  pilot  (Tates  v.  Brown,  8  Pick., 
23  ;  16  Martins,  La.  ;  4  Dallas,  206  ;  Fletcher  v.  Broderlp,  5 
Bos.  &  Pull.,  182),  and  I  think  it  may  be  said  with  equal  force 
where  a  merchant  in  San  Francisco*  receives  a  telegraphic  mes- 
sage from  New  York  which  leads  him  into  a  purchase  involv- 
ing inevitable  pecuniary  loss,  which  would  not  have  occurred 
but  for  an  error  made  in  the  transmission  of  the  message,  that 
he  should  not  be  compelled  to  seek  through  a  chain  of  tele- 
graphic communication  extending  over  nearly  the  whole  length 
and  breadth  of  the  United  States  to  ascertain  where  the  error 
or  mistake  was  made,  but  that  it  is  more  equitable  and  just  to 
hold  that  the  telegraph  company  to  whom  the  message  was 
originally  given,  and  to  whom  the  whole  compensation  For  its 
transmission  was  paid,  should  be  answerable  to  him  for  the 
negligence  ;  that  having  peculiar  facilities,  the  obligation  should 
be  upon  them  to  ascertain  when,  where  and  how  the  error  oc- 
curred, leaving  them  to  fix  the  ultimate  responsibility  where  it 
belongs.  "  Where  a  trust,"  said  Lord  HOLT,  "  is  put  in  one 
person,  and  another  whose  interest  is  intrusted  to  him  is  dam- 
nified by  the  neglect  of  such  as  that  person  employs  in  the  dis- 
charge of  that  trust,  he  shall  answer  for  it  to  the  party  damni- 
fied "  (Lane  v.  Cotton,  12  Mod.,  490).  'A  trust  was  reposed  in 
the  defendants  that  they  would  send  the  message  as  it  was  de- 
livered to  them.  They  determined  by  what  companies  it 
should  be  sent  beyond  their  line,  and,  as  the  result  has  shown, 
the  plaintiff  had  an  interest  in  its  correct  transmission,  which 
is  sufficient  to  bring  the  case  within  this  rule,  which  Lord  HOLT 
laid  down  in  an  action  on  the  case  for  negligence,  and  which, 


558  COURT  OF  COMMON  PLEAS. 

De  Rutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Company. 

i 

though  expressed  in  a  dissenting  opinion,  has  been  uniformly 
regarded  as  sound  law. 

The   next    question   that   arises  is   as  to   the  nature  and 
extent  of  the  responsibility  which  the  law  should  impose  upon 
those  who  engage  in  the  public  business  of  transmitting  intel- 
ligence from  one  place  to  another  by  means  of  the  electric  tel- 
egraph, whether  considered  with  reference  to  their  liability 
•upon  contract  or  for  injuries  brought  about  by  their  negligence. 
The  law  upon  this  subject  is  as  yet  undefined,  for  the  business 
is  of  recent  origin,  and  the  cases  which  have  arisen  are  com- 
paratively few.    I  have  already  pointed  out  one  distinguishing 
feature,  that  though  pursued  for  reward  it  is  designed  for  the 
general  convenience  of  the  public.     Like  the  business  of  com- 
mon carriers,  the  interests  of  the  public  are  so  largely  incor- 
porated with  it,  that  it  diflfe/s  from  ordinary  bailments,  which 
parties  are  at  liberty  to  enter  into  or  not,  as  they  please.     In 
this  State  it  is  made  the  duty  of  telegraph  companies  by  stat- 
ute to  transmit  dispatches  from  and  for  any  individuals  with 
impartiality  and  good  faith  upon  the  payment  of  their  usual 
charges  (Laws  of  New  York,  1848,  p.  395),  a  duty  which  would 
arisefrom  the  nature  of  their  business  even  if  there  were  no 
statute  upon  the  subject.     Common  carriers  are  held  to  the 
responsibility  of  insurers  for  the  safe  delivery  of  the  property 
intrusted  to  their  care,  upon  grounds  of  public  policy,  to  pre- 
vent frauds  or  collusion  with  thieves,  and  because  the  owner, 
having  surrendered  up  the  possession  of  his  property,  is  gener- 
ally unable  to  show  how  it  was  lost  or  injured  (RiUyv.  Home, 
5  Bing.,  217  ;  Thomas  v.  The  Boston  (&  Providence  Railroad 
Co.,  10  Met,  Mass.,  4T6  ;  Coggs  v.  Bernard,  1  Ld.  Raym.,  909, 
and  App.).    These  reasons,  which  are  the  ones  usually  assigned 
for  the  extraordinary  responsibility  of  common  carriers,  cannot 
be  regarded  as  applicable  to  the  same   extent   of  telegraph 
companies ;    nor    are    there    any    reasons,  in  my  judgment, 
why   they  should  be  held  to  the  extent  of  insurers  for  the 
correct     transmission     and     delivery    of    intelligence.      As 
their  business,  however,  is  one  which  leads  to  their  being  in- 
trusted with  confidential  and  valuable  information  especially 
in  commercial  matters,  there  are  opportunities  for  frauds  and 
abuses,  which,  in  view  of  the  relation  that  they  occupy  to  the 
public,  make   it  necessary,  upon  grounds  of  public  policy,  that 


NEW   YORK— MARCH,  1866.  559 

De  Rutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Compauy. 

they  should  be  held  to  a  more  strict  accountability  than  ordi- 
nary bailees.     As  the  value   of  their  services  consists  in  the 
message  intrusted  to  them  being  correctly  and  diligently  trans- 
mitted, it  must  be  taken  for  granted  that  they  engage  to  do 
so ;  and  if  there  is  an  unreasonable  delay,  or  an  error  committed, 
it  should  be  presumed  that  it  has  arisen  from  their  negligence, 
unless  they  can  show  that  it  occurred  from  causes  beyond 
their  control.     It  has  been  pertinently  suggested  by  the  coun- 
sel of  the  defendants  that  the  telegraph  is  not  at  all  times  sub- 
ject to  the  will  of  the  operator ;  that  although  the  machinery 
and  apparatus  are  in  complete  order,  yet  at  times  a  message  can- 
not be  sent  because  of*  supervening  influences  which  at  some 
point  on  the  line  unknown  to  the  operator  destroy  the  affinity 
or  other  active  qualities  of  the  current  as  it  passes  along  the 
wire.     The  delicate  touch  of  the  battery  may  start  the  fluid, 
which  by  its  passage  is  to  transmit  the  agreed  sign,  but  before 
it  reaches  its  destination  a  surcharged  atmosphere,  hundreds 
of  miles  away  from  the  operator,  may  utterly  destroy  or  materi- 
ally vary  the  tractability  of  the  conductor  ;  the  fluid  may  thus 
be  diffused  or  varied  in  its  practical  operation  without  the 
power  of  man  to  foresee  or  to  prevent  it.    Those  who   avail 
themselves  of  the  advantages   of  the  telegraph   can  expect 
nothing  more  than  it  is  in  the  power  of  this  novel  and  useful 
invention  to  afford.     Causes  like  this,  or  any  cause  equally  sat- 
isfactory, would  absolve  a  telegraph  company  from  errors  or 
delays.     It  is  inevitable,  moreover,  that  mistakes  should  be 
committed,  even  by  the  most  skillful  persons,  in  the  interpret- 
ing, the  transmitting  and  transcribing  of  words,  and  where  the 
liability  to  do  so  is  manifest  and  the  risk  incurred  is  great,  it1 
is  reasonable  that  telegraph  companies  should  have  the  right 
to  require,  as  a  test  for  their  own  security  against  loss,  that. a 
message  should  be  repeated.    Their  compensation  is  small  in 
proportion  to  the  risks  they  incur,  and  they  have  the  right  to 
qualify    their  liability  by  a  special  contract  that  they  will 
not   be   answerable  unless  that  condition   is   complied  with. 
Like  common  carriers,  they  may  limit  their  liability   by  a 
special  acceptance  when  the  message  is  delivered  to  them,  but 
which  must  be  brought  home  to  the  knowledge  of  those  who 
employ  them,  who  might  otherwise  be  ignorant  of  the  fact 
that  a  repetition  of  the  message  was  necessary  to  insure  its  ac- 


560  COURT  OF  COMMON  PLEAS. 

De  Rutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Company. 

» 

curate  transmission.  It  may  be  that  in  the  course  of  time  this 
practice  will  become  so  universally  established  among  tele- 
graph companies,  that  all  doing  business  with  them  will  be 
presumed  to  have  a  knowledge  of  it,  and  that  the  omission  to 
secure  a  repetition  of  a  message  will  be  at  the  risk  an.d  peril 
of  the  party  for  whom  it  is  sent.  That  is  not  the  case  at  pres- 
ent, and  as  there  was  nothing  on  the  trial  of  this  action  to  show 
that  the  clerk  who  delivered  the  message  or  any  one  interested 
in  it,  knew  of  the  establishment  of  such  a  regulation  by  the 
defendants,  this  ground  of  defence  is  not  available  to  them. 

The  next  ground  taken  is  that  the  plaintiff  was  himself  at 
fault  in  not  having  the  message  repeated,  after  he  had  ascer- 
tained that  there  were  three  errors  in  it.  That  it  was  cooperat- 
ing negligence  on  his  part  to  act  upon  such  a  message,  which 
deprives  him  of  all  right  of  action.  He  went  to  the  officer  in  San 
Francisco  to  ascertain  exactly  what  dispatch  they  had  received, 
but  they  could  not  find  it ;  and  I  think  that  the  errors  he  had 
discovered  were  not  of  a  character  which  should  have  led  him 
to  doubt  if  the  words  "  twenty-five  "  were  correct.  The  change 
from  Th.  to  Thos.  was  a  very  natural  one.  The  mistake  in  a 
French  word  was  on,e  that  might  ordinarily  occur,  and  the 
transformation  of  Monod,  to  the  operator  an  unmeaning  word, 
into  monied,  was  one  of  those  slips  or  mistakes  which  might 
readily  be  made.  That  they  were  so,  is  apparent  in  the  fact 
that  he  at  once  discovered  them,  and  I  think  that  it  does  not 
follow,  because  he  discovered  mistakes  like  these,  that  he  was 
bound  to  regard  the  whole  message  as  unreliable,  and  have  it 
repeated  at  an  expense  of  some  forty  dollars.  The  words 
"  twenty-five  "  were  intelligible  and  plain.  They  expressed  the 
price  at  which  wheat  was  then  ranging  in  San  Francisco, 
arid  it  was  very  natural  for  him  to  suppose  that  they  had  been 
transmitted  correctly.  To  hold  that  he  was  guilty  of  negligence, 
because  he  assumed  that  the  message  was  correct  in  this  par- 
ticular, would  be  to  declare  that  no  man  must  act  upon  one  in 
which  he  discovers  a  few  trivial  mistakes,  but  which  is  other- 
wise perfectly  intelligible,  ex.cept  at  his  peril.  I  do  not  pro- 
fess to  have  much  information  upon  the  subject,  but  I  appre- 
hend that  it  is  a  matter  of  common  and  every-day  experience 
for  messages  to  be  received  with  words  misspelt  or  otherwise 
altered,  without  affecting  their  general  sense,  and  with  which 


NEW  YOEK— MARCH,   1866.  561 

De  Rutte  v.  The  New  York,  Albany  and  Buffalo  Telegraph  Company. 

they  are  perfectly  intelligible,  but  which  messages  the  party 
receiving  would  have  to  disregard  or  get  repeated  to  be  made 
secure  in  acting  upon  them,  if  the  courts  were  to  recognize 
such  a  rule  as  the  defendants  insist  upon. 

The  last  question  in  the  case  relates  to  the  measure  of  dam- 
ages. The  defendants  claim  that  the  loss  which  the  plaintiffs 
sustained  in  consequence  of  this  erroneous  message,  was  not 
one  that  can  be  regarded  as  fairly  within  the  contemplation  of 
the  parties,  or  such  as  would  naturally  be  expected  to  flow 
from  the  mistake  that  was  made. 

I  dissented  from  the  opinion  of  my  brethren  in  Bryant  v. 
The  American  Telegraph  Co.,  decided  at  the  General  Term, 
1866,  in  which  they  held  a  telegraph  company  responsible  to 
the  amount  of  ten  thousand  dollars  for  a  delay  in  the  delivery 
of  a  telegraphic  dispatch,  by  which  the  plaintiff  lost  the 
opportunity  of  securing  a  debt  of  that  amount  by  an  attachment 
upon  property  of  that  value  belonging  to  his  debtor,  and  so  far 
as  this  court  is  concerned,  that  case  is  decisive  of  the  point  now 
presented.  But  this  is  a  much  stronger  case  than  that.  The 
order  erroneously  transmitted  by  the  defendants'  instrument- 
ality to  the  plaintiff  was  the  direct  cause  of  his  purchasing  the 
wheat  at  the  price  which  he  did,  and  of  the  outlay  he  made  for 
its  shipment;  and  the  inevitable  loss  which  resulted  from  his 
acting  upon  the  supposed  order,  was  the  natural  and  necessary 
consequence  of  that  purchase.  The  familiar  rule  in  respect  to 
damages  is  that  they  must  be  such  as  flow  directly  and  natu- 
rally from  the  non-fulfillment  of  the  contract ;  that  they  must 
not  be  the  remote,  but  the  proximate  consequences  of  the 
breach  ;  that  they  must  be  certain  and  not  speculative  or  con- 
tingent, and  where  the  right  of  action  is  founded  solely  upon 
the  ground  of  negligence,  irrespective  of  any  question  of  con- 
tract, that  they  mnst  be  the  direct  and  immediate  consequence 
of  the  negligence  committed,  and  this  case  comes  fully  within 
this  rule. 

The  judgment  was  affirmed. 
36 


662  COURT  OF  COMMON  PLEAS. 


In  the  matter  of  Miller. 


In  ike  matter  of  HELEN  MILLER,  upon  habeas  corpus,  and 
eleven  other  cases. 

October  Special  Term,  1865. 

Exposition  of  the  law  in  relation  to  vagrancy,  disorderly  persons,  and  disor- 
derly conduct  in  the  city  of  New  York  ;  the  correct  course  of  procedure 
under  the  various  statutes,  in  summary  convictions  and  commitments  for 
such  offenses  before  police  justices  pointed  out,  and  the  nature  and  extent  of 
the  power  that  may  be  exercised  hi  reviewing  such  cases  upon  writs  of 
"habeas  corpus  and  certiorari. 

The  offenses  which  constitute  disorderly  conduct  under  the  acts  of  1833,  ch.  11, 
and  of  1860,  chap.  508,  are  different  from  the  offenses  which  will  constitute 
a  "  disorderly  person  "  under  the  act  of  1833,  and  the  Revised  Statutes.  In 
common  parlance,  one  who  ts  guilty  of  disorderly  conduct  may  be  regarded 
as  a  disorderly  person,  but  these  terms  "  disorderly  person  "  and  "  disorderly 
conducf '  are  used  hi  the  statutes  as  distinguishing  distinct  and  different  offenses. 

There  are,  under  the  statutes  regulating  these  summary  convictions  before  a 
magistrate  without  a  jury,  three  classes  of  offenders.  1.  Vagrants.  2.  Dis- 
orderly persons.  3.  Persons  guilty  of  disorderly  conduct ;  each  of  which  is 
distinguishable  from  the  other,  and  in  each  the  course  of  procedure  is  dif- 
ferent. 

Though  the  statute  of  1833  is  silent  as  to  what  the  magistrate  is  to  do  after  a 
conviction  for  disorderly  conduct,  if  the  offender  fail  to  give  security  for  his 
good  behavior,  it  is  manifestly  implied,  that  he  is  to  be  committed  until  he 
gives  it,  or  until  the  expiration  of  the  period  for  which  he  was  required  to 
give  it.* 

The  act  of  1859,  chap.  491,  authorizing  police  justices  to  impose  a  fine  of  ten 
dollars,  hi  cases  of  disorderly  conduct,  was  not  intended  to,  and  does  not 
abrogate  the  previous  provision,  in  empowering  them  to  require  security  for 
good  behavior  in  such  cases.  It  is  hi  the  discretion  of  the  justice  either  to 
impose  the  fine  or  to  require  security. 


*  Disorderly  conduct  is  improper  driving,  using  threatening,  abusive,  or  in- 
sulting behavior,  suffering  a  ferocious  or  vicious  dog  to  go  unmuzzled,  loiter- 
ing in  public  thoroughfares  for  the  purpose  of  prostitution,  or  any  act,  which, 
in  the  opinion  of  the  magistrate  committing,  tends  to  a  breach  of  the  peace. 


NEW  YORK— OCTOBER,   1865.  563 

la  the  matter  of  Miller. 

The  twentieth  section  of  the  act  of  1860,  chap.  508,  which  declares  that  certain 
acts  shall  constitute  disorderly  conduct,  was  not  intended  to  limit  the  offense 
to  such  acts.  The  only  effect  of  it  is,  that  it  leaves  nothing  to  the  discretion 
or  opinion  of  the  magistrate  where  such  acts  are  proved,  but  makes  it  his 
duty  to  commit. 

The  proceedings  upon  a  conviction  for  disorderly  conduct  were  designed  to 
be  of  a  more  summary  nature  than  upon  the  conviction  of  vagrants  or  dis- 
orderly persons.  In  the  latter  cases,  a  record  of  the  conviction  must  be 
filed,  but  the  filing  of  a  record  is  not  necessary  in  committing  for  disorderly 
conduct. 

It  is  not  essential  to  the  validity  of  a  commitment  for  disorderly  conduct,  that 
it  should  set  forth  the  acts  which,  in  the  opinion  of  the  magistrate,  tend  to 
a  breach  of  the  peace.  Where  the  commitment  declares  that  the  prisoner 
was  charged  before  the  magistrate,  on  the  oath  of  witness,  who  is  named, 
with  such  disorderly  conduct,  as  in  the  opinion  of  the  magistrate,  tends  to  a 
breach  of  the  peace,  and  that  he  was  required  to  give  security  for  his  good 
behavior,  and  failed  to  give  it,  it  is  sufficient. 

Where  the  criminal  process  upon  which  the  party  is  imprisoned  is  returned 
in  answer  to  a  writ  of  habeas  corpus,  all  that  the  officer  granting  the  writ  can 
do  is  to  examine  the  process,  to  see  if  the  officer  or  court  whence  it  ema- 
nated had  jurisdiction  of  the  subject  matter,  and  if  that  appears  upon  the  face 
of  the  process,  the  party  must  be  remanded.  If  the  officer  making  the  com- 
mitment acted  upon  insufficient  evidence,  or  without  any  evidence  at  all, 
the  remedy  is  by  a  writ  of  certiorari  to  the  Court  of  Sessions,  unde  r  the 
act  of  1859,  chap.  339. 

Where  the  order  for  the  transfer  of  the  offender  from  the  City  Prison  to  the 
Work-House,  purports  upon  its  face  to  be  made  by  the  direction  of  the 
Board  of  Commissioners  of  Public  Charities,  and  is  authenticated  by  the 
signature  of  one  of  the  commissioners,  it  is  sufficient.  Otherwise,  when  it 
is  signed  by  one  of  the  commissioners  only,  and  there  -is  nothing  upon  its 
face  to  denote  that  it  was  done  by  order  of  the  Board. 

Where  a  power  is  given  to  a  Board  of  Commissioners  by  statute,  the  official 
act  of  one  of  the  members  will  not  suffice,  but  ikmust  appear  that  the  Board 
acted  in  the  premises. 

A  commitment  for  disorderly  conduct  until  the  offender  finds  security  in  a 
certain  sum  for  his  good  behavior  is  bad,  as  it  is  equivalent  to  perpetual 
imprisonment,  if  he  should  be  unable  to  find  security.  It  must  be  for  some 
fixed  term  or  period,  and  must  not  exceed  twelve  mouths. 

The  provision  in  the  act  of  1864,  chap.  580,  declaring  that  no  person  com- 
mitted to  the  City  Prison  or  Work-House,  for  drunkenness  or  disorderly 
conduct,  should  be  discharged,  except  upon  reversal  of  judgment  upon 
appeal,  or  review  by  a  court  of  superior  jurisdiction  to  the  magistrate  mak- 
ing the  committment,  does  not  preclude  a  judge  upon  tuib&i*  corpn*  from 
enquiring  whether  the  magistrate  making  the  commitment  acted  in  a  mat- 


564:  COURT  OF  COMMON  PLEAS. 

In  the  matter  of  Miller. 

ter  of  which  he  had  jurisdiction,  and  discharging  the  party  if  there  was  a 
want  of  jurisdiction. 

The  writ  of  habeas  corpus  stands  upon  the  same  footing  as  the  writs  of  quo  war- 
ranio,  mandamus,  certiorari  and  prohibition,  and  as  in  the  case  of  these  writs, 
the  proceedings  under  it  are  appellate  in  their  character.*  It  issues  under 
the  seal  of  the  Supreme  Court.  The  officer  acting  under  it  is  clothed  by 
statute  with  the  same  power  as  the  court ;  it  brings  up  the  body  of  the  pris- 
oner with  the  cause  of  his  commitment,  and  the  proceeding  under  it  is  a 
review  by  a  court  having  superior  jurisdiction  to  the  magistrate  making  the 
commitment. 

All  which  is  essential  to  constitute  a  court  exist  in  the  proceeding  which  is 
had  before  a  judge  upon  a  writ  of  7iabea.s  corpus  ;  the  actor,  or  plaintiff,  the 
reus,  or  defendant,  and  the  judex,  or  judicial  power  which  is  to  examine  into 
the  fact,  the  law  arising  upon  it,  and  to  apply  the  remedy ;  the  officer  acting 
not  ministerially  but  judicially  with  authority  by  statute  to  imprison. 

Where  an  authority  is  created  by  statute,  with  power  to  fine  or  imprison,  the 
officer,  person  or  body  invested  with  such  authority  is,  for  that  purpose, 
deemed  a  court. 

Eleven  persons  were  brought  up  upon  writs  of  habeas 
corpus  and  certiorari,  all  of  whom  had  been  committed  by  po- 
lice justices  for  disorderly  conduct,  and  had  been  trans- 
ferred from  the  City  Prison  to  the  Work-House  on  Blackwell's 
Island.  Their  discharge  was  moved  for  for  various  alleged 
irregularities,  both  in  the  proof  of  commitment  and  in  the 
orders  for  their  transfer,  all  of  which  appear  in  the  opinion  de- 
livered. 

W.  F.  Howe,  for  the  petitioners. 

A.  Odkey  Hail,  District  Attorney,  for  the  people. 

DALY,  F.  J. — The  parties  in  the  above  cases  have  been 
brought  before  me  upon  writs  of  habeas  corpus,  and  the  author- 
ity upon  which  they  are  held  upon  writs  of  certiorari.  They 
have  been  severally  committed  by  police  justices  for  disorderly 
conduct,  upon  failing  to  give  security  for  their  good  behavior, 
to  the  City  Prison,  and  from  thence  have  been  transferred 
to  the  "Work-house  upon  Blackwell's  Island.  Their  discharge 
is  sought  upon  the  ground  that  the  original  commitments,  in 
every  case,  are  void,  and  upon  the  further  ground,  in  several 
cases,  that  the  transfers  to  the  Work-house  were  not  in  the 
mode  prescribed  by  law. 


NEW  YORK—OCTOBER-,  1865.  565 


In  the  matter  of  Miller. 


As  many  laws  have  been  passed  in  respect  to  those  summary 
convictions,  and  as  a  great  deal  of  uncertainty  prevails  as  to 
the  correct  mode  of  procedure  under  them,  it  will  be  necessary 
for  me  to  review  the  various  statutory  enactments,  that  I  may 
pass  intelligibly  upon  the  questions  raised. 

In  that  portion  of  the  Revised  Statutes  relating  to  the  inter- 
nal police  of  the  State  (1  Rev.  Stat.,  chap.  20,  Part.  I.),  an 
enumeration  is  made  of  two  classes  of  offenders  :  1st.  Vagrants. 
2d.  Disorderly  persons.  Under  the  head  of  Yagrants  are  em- 
braced :  1st.  Idle  persons,  living  without  employment,  and 
having  no  visible  means  of  support ;  2d.  Beggars  ;  3d.  Persons 
wandering  abroad  and  sleeping  in  the  open  air,  or  other  speci- 
fied places  ;  and  Disorderly  Persons  are  substantially  desig- 
nated as  :  1st.  Those  who  abandon  their  wives  and  families  ; 
2d.  Prostitutes  ;  3d.  Fortune-tellers ;  4th.  Mountebanks ;  5th. 
Common  showmen ;  6th.  Gamblers ;  and  7th.  Keepers  of 
bawdy  houses. 

The  first  class,  or  Yagrants,  upon  conviction  before  a  magis- 
trate, may  be  committed  to  the  Poor-house  for  six  months,  or, 
if  improper  persons  to  be  sent  there,  may  be  sent  to  the  County 
Jail  for  sixty  days.  The  second  class,  disorderly  persons,  upon 
conviction,  may  be  required  by  the  magistrate  to  give  security 
for  their  good  behavior  for  a  year,  and,  failing  to  do  so,  may 
be  committed  to  the  common  jail  until  they  find  such  security, 
or  are  discharged  by  law.  Upon  the  conviction  of  a  vagrant, 
a  record  of  the  conviction  must  be  made  up  by  the  magistrate, 
and  filed  in  the  County  Cle'rk's  office  ;  and  on  the  commit- 
ment of  a  disorderly  person,  upon  failing  to  give  securify,  a 
record  must -also  be  made  up  in  the  same  way  and  filed. 

In  1833,  an  Act  was  passed  for  the  regulation  of  the  criminal 
courts  of  this  city  (Laws  of  New  York,  1833,  p.  9),  which,  among 
other  things,  embraced  an  enumeration  of  the  class  known  as 
vagrants,  which  is  more  extensive  than  that  contained  in  the 
Revised  Statutes,  and  an  addition  was  made  to  the  class 
known  as  disorderly  persons.  This  Act,  which  was  limited  to 
the  City  of  New  York,  authorizes  the  Mayor,  Recorder,  or 
any  police  justice  of  the  city,  to  commit  vagrants,  who  are  not 
notorious  offenders,  to  the  Alms-house  for  six  months  at  hard 
labor,  or  if  not  tit  persons  to  be  sent  there,  then  to  the  Pen- 
itentiary for  the  8ame  period.  It  provided  for  the  commitment 


566  COUKT    OF    COMMON    PLEAS. 

t — 

In  the  matter  of  Miller. 

of  disorderly  persons  in  the  same  manner  as  in  the  Revised 
Statutes,  and  in  both  cases  required  the  filing  of  a  record  of 
the  conviction. 

This  Act  made  provision  also  for  what  is  denominated  in  the 
Act  disorderly  conduct,  which  by  one  section  (§  5)  is  the  riding 
or  driving  of  a  horse  through  the  public  streets  at  a  greater 
rate  of  speed  than  five  miles  an  hour  ;  and  in  another  section 
(§  8)  is  declared  to  be  such  disorderly  conduct  as,  in  the  opinion 
of  the  magistrate,  tends  to  a  breach  of  the  peace.  For  the 
offense  of  improper  driving,  the  magistrate  is  authorized  to 
impose  a  fine  of  ten  dollars,  and  if  it  is  not  paid,  to  commit  the 
offender  to  the  City  Prison  until  it  is  paid,  but  not  for  a  longer 
period  than  ten  days  ;  and  for  the  offence  of  disorderly  conduct 
tending  to  a  breach  of  the  peace,  he  is  empowered  to  require 
the  offender  to  give  security,  for  his  or  her  good  behavior,  for 
a  period  not  exceeding  twelve  months.  The  statute  is  silent 
as  to  what  the  magistrate  is  to  do,  if  the  security  is  not  given  ; 
but  though  not  expressed,  the  intention  is  manifestly  implied 
that  the  offender  is  to  be  committed  until  he  gives  it,  or  until 
the  expiration  of  the  period  for  which  he  was  required  to  give 
it ;  and  such,  since  the  passage  of  the  Act,  has  been  the  course 
of  procedure  under  it. 

The  disorderly  conduct  here  referred  to  is  distinguishable 
and  different  from  those  acts  which  will  constitute  a  disorderly 
person  or  a  vagrant,  as  defined  in  this  statute  and  by  the  Re- 
vised Statutes.  In  common  parlance,  a  person  guilty  of  dis- 
orderly conduct  may  be  said  to  be  a  disorderly  person  ;  but  we 
have  here  to  do  with  statutes  that  have  carefully  defined  what 
is  to  be  understood  by  the  term  "  a  disorderly  person,"  and 
which  have  distinguished  the  offense  of  "  disorderly  conduct"  as 
simply  the  offense  of  improper  driving,  or  such  conduct  as,  in 
the  opinion  of  the  magistrate,  tends  to  a  breach  of  the  peace  ; 
and  it  has  been  the  failure  to  observe  this  distinction  and  the 
confounding  of  one  term  with  the  other  that  have  led  to  a  great 
deal  of  the  practical  difficulty  attending  the  administration  of 
this  branch  of  our  criminal  law.  The  term  disorderly  conduct, 
as  distinguishing  an  offense  different  from  that  which  will 
constitute  a  disorderly  person,  was  used  in  our  statutes  long 
before  the  passage  of  this  local  Act  of  1833,  or  the  adoption  of 
the  Revised  Statutes  (Laws  of  1816,  pp.  171,  172,  §  II. ;  1  Rev. 


NEW  YORK— OCTOBER,  1 865.  567 


In  the  matter  of  Miller. 


Laws  of  1813,  p.  114  ;  2  Id.,  p.  354) ;  and  in  addition  to  what 
has  been  above  pointed  out  there  are  other  features  whfch 
serve  to  distinguish  the  one  from  the  other.  The  Act  of 
1833  requires  a  record  to  be  filed  upon  the  commitment  of  a 
disorderly  person  who  fails  to  give  the  requisite  security  (§  7)  ; 
but  it  makes  no  such  provision  in  respect  to  disorderly  conduct 
(§  8).  In  the  case  of  disorderly  conduct,  moreover,  the  mag- 
istrate may  require  security  for  the  offender's  good  behavior, 
for  any  period  he  may  think  proper  to  designate,  not  exceeding 
twelve  months.  He  may  take  it  for  a  week,  or  for  a  month, 
or  for  any  time  within  the  statutory  limit ;  whereas,  in  the 
case  of  a  disorderly  person,  lie  must  take  it  for  a  year,  and  not 
for  any  lesser  period.  There  are,  therefore,  under  the  statutes 
regulating  these  summary  convictions  before  a  magistrate  with- 
out a  jury,  three  classes :  1st.  Vagrants  ;  2d.  Disorderly  persons  ; 
and  3d.  Persons  guilty  of  disorderly  conduct ;  each  of  which  is 
distinguishable  from  the  other,  and  in  each  the  course  of  pro- 
cedure is  different.  All  the  cases  now  before  me  are  commit- 
ments for  disorderly  conduct ;  and,  in  passing  upon  the  ques- 
tions that  have  been  raised  as  to  the  validity  of  these  commit- 
ments, I  shall  examine  only  such  statutory  provisions  as  in  my 
judgment  relate  exclusively  to  this  class  of  convictions. 

The  first  objection  is,  that  no  record  has  been  filed.  It  is 
not  necessary.  The  fact  that  the  statute  of  1833  makes  pro- 
vision for  the  filing  of  a  record  upon  the  commitment  of  a 
vagrant  or  of  a  disorderly  person,  and  makes  no  such  provision 
in  relation  to  convictions  for  disorderly  conduct,  must  be 
taken  as  an  expression  of  the  legislative  intention,  that  this 
class  of  convictions  were  intended  to  be  of  a  more  summary 
character,  in  which  the  formality  of  a  record  was  to  be  dis- 
pensed with.  They  have  been  uniformly  so  regarded  ;  and 
during  the  thirty-two  years  that  had  elapsed  since  the  passage 
of  the  Act  of  1833  it  has  never  been  the  practice  to  make  up 
and  file  records  of  conviction  in  such  cases. 

In  1859,  an  Act  was  passed  in  relation  to  police  justices  in 
this  city  (Laws  of  1859,  p.  1129),  by  which  it  was  provided 
(§  5)  that  in  all  cases  of  arrest  for  intoxication  or  disorderly 
conduct,  the  police  justice,  in  addition  to  holding  the  party  to 
bail  for  good  biehavior,  should  have  power  to  impose  a  tine  to 
the  extent  of  ten  dollars,  or  to  commit  to  the  City  Prison  for  a 


568  COURT  OF  COMMON  PLEAS. 

In  the  matter  of  Miller. 

period  not  exceeding  ten  days,  each  day  of  imprisonment  to  be 
taken  as  a  liquidation  of  one  dollar  of  the  fine.  It  is  insisted  that 
since  the  passage  of  this  Act  there  can  be  no  commitment 
for  a  greater  period  than  ten  days — that  all  the  magistrate  can 
do  is  to  require  the  party  to  give  security  for  good  behavior, 
and  if  it  is  not  given,  to  impose  a  fine  of  ten  dollars  or  less,  and  if 
that  is  not  paid  commit  to  the  City  Prison  for  ten  days  or  less. 
But  this  by  the  express  word  of  the  statute  is  a  power  given  in 
addition  to  that  which  authorized  the  magistrate  to  require 
security  for  the  party's  good  behavior  for  a  period  not  exceed- 
ing twelve  months ;  for  the  use  of  the  words  "  in  addition"  is 
a  plain  indication  of  the  intention  that  the  previous  power  was 
to  continue.  As  I  interpret  the  statute,  therefore,  the  justice 
may,  as  he  could  do  before,  require  the  party  to  give  security 
for  any  period  not  exceeding  twelve  months,  and  commit  him 
if  he  fails  to  give  it — or  he  may  impose  a  fine  to  the  extent  of 
ten  dollars,  and,  if  it  is  not  paid,  commit  the  party  for  a  number 
of  days  corresponding  with  the  amount  of  the  fine.  As  a  large 
number  of  those  who  are  arrested  for  disorderly  conduct  are 
composed  of  a  class  generally  unable  to  give  security,  the  dis- 
cretion is  certainly  a  very  large  one  which  allows  a  magistrate 
to  commit  them  to  prison  for  twelve  months,  when  for  much 
graver  offenses  the  Court  of  Special  Sessions  can  sentence  an 
offender  for  no  longer  a  period  than  six  months ;  and  this  be- 
comes the  more  serious  when  it  is  considered  that  the  right  to 
commit  for  disorderly  conduct  is  not  expressly  given,  but 
merely  implied.  In  the  commitment  of  vagrants  or  disorderly 
persons,  moreover,  the  magistrate  is  required  to  distinguish 
between  those  who  should  be  sent  to  the  Alms-house  at  hard 
labor,  at  present  known  as  the  Work-house,  and  those  who 
should  be  sent  to  the  Penitentiary.  In  the  commitment  of 
disorderly  persons,  not  only  is  the^ling  of  a  record  of  con- 
viction directed,  but  the  keeper  of  the  jail  is  required  (1  Rev. 
Stat.,  639)  to  return  to  the  next  Court  of  General  Sessions  a 
list  of  all  persons  so  committed  and  in  his  custody,  with  a  state- 
ment of  their  offenses,  the  names  of  the  justices  committing 
them,  and  the  term  during  which  they  nave  been  in  prison ; 
and  the  Court  is  directed  to  inquire  into  the  circumstances,  to 
hear  any  proof  that  may  be  offered,  ffc  examine,  the  record  of 
conviction,  and  in  its  discretion  may  either  discharge  the 


NEW  YORK— OCTOBER,   1865.  569 


In  the  qiatter  of  Miller. 


offender  or  order  him  to  to  be  left  in  jail  for  a  period  of  six 
mouths.  But  no  such  supervisory  power  exists  in  commitments 
for  disorderly  conduct,  nor  until  1857  "was  there  any  means 
by  which  a  person  so  committed  could  review  the  decision  of 
the  justice,  or  be  discharged  from  the  commitment,  except  by 
giving  security,  which,  as  a  general  rule,  it  is  not  in  the  power 
of  this  class  of  persons  to  obtain.  The  power  which  the  magis- 
trate, and  the  Commissioners  of  Public  Charities  and  Correction 
have  to  discharge  from  the  Work-house  or  Penitentiary  applies 
only  to  the  case  of  vagrant  and  disorderly  persons,  and  not  to 
those  convicted  merely  of  disorderly  conduct  (Laws  of  1853, 
p.  353 ;  Laws  of  1855,  p.  451  ;  Laws  of  1860,  p.  1008,  §  5). 
The  strange  anomaly  is  therefore  presented,  that  the  former, 
who  are  guilty  of  much  graver  offenses,  have  their  conviction 
reviewed  at  the  next  term  of  the  Court  of  General  Sessions; 
that  they  cannot,  in  any  event,  be  imprisoned  for  a  longer 
period  than  six  months,  and  may  be  discharged  by  the  Court 
of  Sessions,  or  at  any  time  during  their  imprisonment  by  an 
order  of  two  of  the  Commissioners  of  Public  Charities  and 
Correction,  wjth  the  approval  of  the  magistrate  that  committed 
them;  while  the  latter,  whose  offenses  are  of  a  lighter  degree, 
may  be  imprisoned  for  twelve  months,  and  cannot  be  discharged 
unless  they  give  security.  An  Act  was  passed  in  1857  (Laws 
of  1857,  vol.  2,  708),  amended  in  1859  (Laws  of  1859,  p.  794), 
by  which  a  writ  of  certioran  to  the  Court  of  Sessions  to  review 
a  conviction  in  a  Police  Court  may  be  allowed  by  a  Justice  of 
the  Supreme  Court ;  but  until  the  passage  of  this  Act  there  was 
no  means  by  which  an  error,  mistake,  or  injustice,  in  a  com- 
mitment for  disorderly  conduct,  could  bo  interfered  with  by 
any  officer  or  tribunal,  and  the  committing  magistrate  was 
clothed  with  a  power  which,  whether  rightly  or  wrongly  ex- 
ercised, was  beyond  review  or  remedy.  Our  statutes  in  this 
particular  are  in  a  state  certainly  calling  for  amendment ;  and  it 
ie  to  be  hoped  that  the  consideration  of  this  subject  will  be 
called  to  the  attention  of  the  Legislature. 

By  an  Act  passed  in  1860  in  relation  to  the  police  and 
courts  in  this  city  (Laws  of  1860,  p.  1007),  it  was  provided 
(§  20)  that  every  person  in  this  city  and  county  shall  be  deemed 
guilty  of  disorderly  conduct  that  tends  to  a  breach  of  the  peace, 


570  COUKT  OF  COMMON  PLEAS. 

In  the  matter  of  Miller. 

who  shall  in  any  thoroughfare  or  public  place  in  this  city  com- 
mit any  of  the  following  offenses  : 

1.  Every  person  who  shall  suffer  to  be  at  large  any  unmuz- 
zled, ferocious  or  vicious  dog.  (' 

2.  Every  common  prostitute  or  night-walker,  loitering  or 
being  in  any  thoroughfare  or  public  place  for  the  purpose  of 
prostitution- or  solicitation,  to  the  annoyance  of  the  inhabitants 
or  passers-by. 

3.  Every  person  who  shall  use  any  threatening,  abusive  or 
insulting  behavior,  with,  an  intent  to  provoke  a  breach   of  the 
peace  or  whereby  a  breach  of  the  peace  may  be  occasioned. 

It  is  claimed  that  this  is  a  legislative  exposition  of  what  is 
meant  by  disorderly  conduct;  that  it  defines  and  limits  the 
nature  of  the  offense,  and  that  every  commitment  must  show 
upon  its  face  that  the  offender  was  found  guilty  of  some  one 
of  the  acts  above  specified.  Bat  this  statute  cannot  be  taken 
as  repealing  those  parts  of  the  Act  of  1833  providing  for  the 
pnnishmeut  of  disorderly  conduct.  It  declares  that  the  cases 
specified  shall  constitute  disorderly  conduct ;  but  neither  in  its 
terms  nor  by  implication  does  it  limit  it  to  such  cases.  It  is 
not  in  conflict  nor  in  any  way  inconsistent  with  the  pre-existing 
Act  of  1833,  by  the  provisions  of  which  any  conduct  is  dis- 
orderly which  in  the  opinion  to  the  magistrate  tends  to  a 
breach  of  the  peace.  In  respect  to  the  acts  or  offenses  partic- 
ularized, it  leaves  nothing  to  the  discretion  or  opinion  of  the 
magistrate,  if  the  fact  is  proved,  but  does  not  go  beyond  that. 
It  is  not  desirable  that  it  should,  for  there  are  many  acts 
which  tend  to  produce  a  breach  of  the  peace  that  it  would  be 
difficult  to  bring  within  any  statutory  positive  definition.  The 
discretion  with  which  the  magistrate  is  clothed  by  the  Act  of 
1833,  to  require  security  for  good  behavior  when  the  conduct  of 
the  offender  has  been  such  as  in  the  opinion  of  the  magistrate 
has  a  tendency  to  lead  to  a  breach  of  the  p'eace,  is  a  salutary  one. 
It  is  indispensable  in  a  great  metropolis  like  this,  to  secure  the 
preservation  of  good  order,  and  it  is  not  to  be  assumed  that  the 
Legislature  meant  to  take  away  what  was  so  essential  to  its 
preservation,  unless  that  intention  is  unmistakably  expressed. 

The  next  objection  is,  that  none  of  the  commitments,  ex- 
cept in  one  case,  specify  any  act  that  was  done,  tending  to  a 
breach  of  the  peace.  It  is  insisted  that  the  commitment  should 


NEW  YORK— OCTOBER,   1865.  571 


In  the  matter  of  Miller. 


set  forth  either  that  the  party  was  convicted  of  some  one  of  the 
acts  specified  in  the  amendatory  statute  of  1859,  or  some  act 
or  acts  should  be  stated  which,  in  the  opinion  of  the  magistrate, 
had  a  tendency  to  produce  a  breach  of  the  peace. 

This  objection  is  not  tenable.  Where  the  criminal  process 
under  which  the  party  is  imprisoned  is  returned,  as  in  these 
cases,  in  answer  to  the  writ  of  habeas  corpus,  all  that  the  officer 
granting  the  writ  can  do  is,  to  examine  the  process  to  see  if 
the  officer  or  court  whence  it  emanated  had  jurisdiction  of  the 
subject  matter,  and  if  that  appears  upon  the  face  of  the  pro- 
cess, the  prisoner  must  be  remanded  to  the  custody  from  which 
he  was  taken.  The  officer  making  these  commitments  may 
have  acted  upon  insufficient  evidence  or  without  any  evidence 
at  all,  but  that  is  not  a  matter  which  can  be  inquired  into  upon 
habeas  corpus  (The  People  v.  Cassels,  5  Hill,  168  ;  Bennac  v. 
The  People,  4=  Barb.;  31 ;  The  People  v.  MeLeod,  25  Wend., 
483  ;  1  Hill,  377  ;  In  the  matter  of  Clark,  9  Wend.,  212  ;  In 
the  matter  of  Prime,  1  Barb.,  S.  C.,  296  ;  Case  of  the  sheriff 
of  Middlesex,  11  Ad.  &  Ellis,  273).  "  A  warrant,"  says  Justice 
WILLA.RD,  in  Bennac  v.  The  People,  supra,  "  issued  upon  the 
conviction  of  a  party  as  a  disorderly  person  is  not  required  to 
recite  any  fact  but  the  conviction  ;"  and  in  the  learned  note  of 
the  late  Mr.  HILL,  upon  the  nature  of  the  writ  of  habeas  corpus 
(3  Hill,  Appendix,  658,  note  30),  he  says,  after  a  citation  of  the 
authorities :  ''  Neither  the  English  nor  our  own  statutes  were 
intended  to  authorize  an  inquiry  into  the  validity  of  writ,  war- 
rant, or  other  process,  futher  than  to  ascertain  if  they  will 
protect  the  party  suing  them  out  or  the  officer  executing  them. 

*  *     *     If  the  object  is  to   impeach  it  as  irregular,  or  as 
founded   upon  an   erroneous  or  irregular  judgment,  .decree  or 
conviction,  you  can  no  more  inquire  of  such  things  collaterally 
by  habeas  corpus  than  you 'can  by  an  action  or  indictment 

*  *     *     Error,  irregularity,  or  want  of  form  is  no  objection 

*  *     *    If  it  is  sufficient  to  protect  the  party  or  the  officer, 
the  imprisonment  is  lawful,  and  can  be  relieved  against  only 
by  a  writ  of  error,  certiorari,  <fec." 

The  commitments  in  these  cases  declare  that  each  prisoner 
was  charged  before  the  magistrate,  upon  the  oath  of  a  witness 
who  is  named,  with  such  disorderly  conduct  ns,  in  the  opinion 
of  the  magistrate,  tends  to  a  breach  of  the  peace ;  that  the  pris- 


572  COTJET  OF  COMMON  PLEAS. 

In  the  matter  of  Miller. 

oner  was  required  to  give  security  for  his  good  behavior ;  that 
he  failed  to  do  so,  and  closes  with  the  order  that  he  be  commit- 
ted to  the  City  Prison  for  a  period  named,  which  in  no  one  of 
the  cases  is  greater  than  six  months,  or  until  he  find  security. 
This  is  amply  sufficient  to  show  that  the  police  justice  in  each 
case  acted  in  a  matter  of  which  he  had  jurisdiction,  and  that 
he  had  authority  to  do  what  he  did.  If  lie  acted  erroneously, 
or  upon  insufficient  evidence,  the  prisoner's  remedy  is  to  pro- 
cure the  allowance  of  a  writ  of  certiorari  to  the  Court  of  Ses- 
sions to  review  the  justice's  judgment,  under  the  amendatory 
Act  of  1859  (Laws  of  1859,  p  794). 

The  next  objection  is  to  the  mode  by  which  the  prisoners 
were  transferred  from  the  City  Prison  to  the  "Work-house  on 
Blackwell's  Island.  The  Act  abolishing  the  Alms-house  and 
creating  the  Department  of  Public  Charities  and  Correction 
(Laws  of  1860,  p.  1026)  authorizes  the  Board  of  Commissioners 
to  transfer  and  commit  from  the  City  Prison  to  the  Work-house 
vagrants,  disorderly  persons  and  persons  committed  for  crime. 
There  might  be  some  doubt  whether  persons  committed  to  the 
City  Prison  for  disorderly  conduct  would  be  included  in  either 
of  the  classes  above  specified  ;  but  that  doubt  is  set  at  rest  by 
the  passage  of  the  Act  of  1864  (Laws  of  1864,  p.  1342),  which 
is  not  only  a  legislative  recognition  that  such  was  the  intention, 
but  an  Act  designating  the  time  at  which  the  transfers  may  be 
made  in  such  cases.  This  disposes  of  the  first  objection  made 
upon  this  ground.  In  some  of  the  cases  before  me  the  order 
for  the  transfer  is  signed  merely  by  one  of  the  Commissioners, 
and  there  is  nothing  upon  the  face  of  the  paper  to  denote  that 
it  was  done  by  order  of  the  Board.  This  is  not  sufficient.  The 
power  is  given  by  the  statute  to  the  Board  and  not  to  any  one 
of  the  Commissioners ;  and  to  warrant  the  transfer,  it  must  at 
least  appear  that  the  Board  acted  in  the  premises.  In  the 
other  cases,  the  order  for  the  transfer  purports  upon  its  face  to 
be  made  by  the  direction  of  the  Board,  and  is  authenticated 
by  the  signature  of  one  of  the  Commissioners.  This  is,  in  my 
judgment,  sufficient  in  answer  to  a  writ  of  habeas  corpus. 

In  some  cases,  the  party  is  committed  until  he  finds  security 
in  a  certain  sum  for  his  good  behavior.  Such  a  commitment  is 
void,  as  the  Justice  can  require  the  party  only  to  give  security 
for  some  period,  not  exceeding  twelve  months,  and  under  a 


NEW  YOKK— OCTOBER,  1865.  573 


In  the  matter  of  Miller. 


commitment  like  this,  the  party  *if  he  could  not  find  security, 
would  have  to  be  detained  beyond  twelve  months.  It  is,  in 
such  an  event,  equivalent  to  perpetual  imprisonment.  In 
other  cases,  the  commitments  are  defective,  as  they  fix  no 
positive  term  of  imprisonment,  other  than  that  it  is  not  to  ex- 
ceed six  months.  They  do  not  declare  for  what  period  the 
party  was  required  to  give  security  for  his  good  behavior,  but 
simply  direct  that  he  shall  be  imprisoned  for  a  period  not  ex- 
ceeding six  months. 

The  last  objection  is  that  a  judge  upon  habeas  corpus  hag  no 
power  to  discharge  a  commitment  for  disorderly  conduct,  in  any 
case  or  for  any  cause.  By  an  Act  passed  in  1864  (Laws  of 
1864, 1342),  it  is  declared  that  no  person  committed  to  the  City 
Prison  or  the  "Work-house,  for  drunkenness  or  disorderly 
conduct,  shall  be  released  or  discharged  from  confinement 
before  the  expiration  of  the  term  for  which  he  or  she  shall  be 
committed,  except  upon  reversal  of  judgment  upon  appeal  or 
review  by  a  court  of  superior  jurisdiction  to  the  magistrate 
making  the  commitment,  without  a  written  order  directing 
such  discharge  be  made,  and  signed  by  the  committing  magis- 
trate and  one  of  the  Commisioners  of  Public  Charities  and 
Correction.  It  is  not  to  be  assumed  that  the  Legislature  in- 
tended to  take  away  the  privilege  of  the  writ  of 'habeas  corpus, 
where  the  citizen  is  deprived  of  his  liberty  by  an  officer  acting 
totally  without  jurisdiction,  unless  it  is  clear  that  such  was  the 
intention,  and  I  do  not  think  that  that  was  the  design  of  the 
Act.  A  restrictive  Act  of  an  analogous  character  was  passed 
in  1855  (Dames'  Laws  relative  of  the  City  of  New  York,  p. 
1194),  forbidding  the  discharge  of  vagrants  from  the  Penitentiary 
or  Work-house,  unless  upon  a  writ  of  habeas  corpus  or  certio- 
rari,  except  by  an  order  of  the  Governors  of  the  Alms-house,  and 
by  an  Act  passed  in  1860  ( Valentine's  Laws  relating  to  the 
City  of  New  York,  p.  606),  it  was  provided  that  disorderly 
persons  should  not  be  discharged  without  the  written  approval 
of  the  magistrate  committing  them,  except  by  a  court  of  com- 
petent jurisidiction,  or  other  legal  proceedings  for  that  purpose. 
The  Act  of  1864  is  not  as  carefully  worded  as  these  two  Acts 
in  relation  to  vagrant  and  disorderly  persons,  but  I  think  the 
intention  was  the  same,  and  that  the  words  "  or  review  by  a 
Court  of  superior  jurisidiction  to  the  magistrate  making  the 


574  COURT  OF  COMMON  PLEAS. 

In  the  matter  of  Miller. 

commitment"  may  be  held  to^mbrace  the  extent  to  which  a 
Judge  upon  habeas  corpus  and  certlorari  may  review  the  pro- 
ceedings of  magistrates  upon  criminal  process,  that  is,  to  the 
extent  of  ascertaining  whether  the  magistrate  acted  in  a  matter 
of  which  he  had  jurisdiction.  The  writ  of  habeas  corpus  was 
from  its  inception  a  prerogative  writ.  At  common  law  it  stood 
upon  the  same  footing  as  other  writs  of  that  character,  such  as 
a  quo  warr%nto,  mandamus,  vertiorari,  prohibition,  &c.,  and 
was  dealt  with  upon  the  like  general  grounds  and  principles 
(3  Bl.  Com.,  131-2 ;  Rex  v.  Cowle,  2  Burr.,  855-6).  The  pro- 
ceedings under  it,  as  in  all  prerogative  writs,  were  regarded 
as  appellate  in  their  character  (Ingersoll  on  Habeas  Corpus,  36  ; 
Yatetf  Case,  4  Johns.  R.,  31T ; Bacon's  Abm.,  Habeas  Corpus,  A), 
and  it  is  said  by  Chief  Justice  MARSHAL^  in  Ex  parte  Tobias 
Watkins  (3  Pet.  R.,  202)  to  be  "  in  the  nature  of  a  writ  of 
error  which  brings  up  the  body  of  the  prisoner  with  the  cause 
of  his  commitment."  In  this  State,  where  the  writ  issues  on 
behalf  of  a  person  restrained  of  his  liberty,  the  proceedings 
are  regulated  by  statute,  by  which  the  provisions  of  the  com- 
mon law  have  been  abrogated,  except  so  far  as  they  may  be 
necessary  to  carry  out  the  provisions  of  the  statute  (2  R,.  S.,  573, 
§  73).  By  the  statute  the  writ  issues  under  the  seal  of  the  Su- 
preme Court,  and  whether  allowed  and  heard  by  the  Court  or  by 
an  officer  authorized  to  grant  it,  the  proceedings  are  in  either  case 
the  same,  and  the  judge  or  officer  before  whom  it  is  returnablo 
is  clothed  with  all  the  power  given  by  the  statue  to  the  Court 
(3  Hill,  Appendix,  Note  5).  He  may  therefore  be  said  to  act, 
within  the  limits  prescribed  by  the  statute,  as  a  court.  There 
are  in  a  court,  according  to  Blackstone,  three  constituent 
parts,  actor,  reus  andjudex  :  the  actor,  or  plaintiff,  who  com- 
plains of  an  injury  done  ;  the  reus  or  defendant,  who  is  called 
upon  to  make  satisfaction  for  it;  and  the  judex,  or  judicial 
powerv  which  is 'to  examine  the  truth  of  the  fact,  the  law 
arising  upon  it,  and,  if  an  injury  has  been  done,  to  apply  the 
remedy  (3  Bl.  Com.,  25)%  All  these  exist  in  the  proceeding 
which  is  had  before  a  judge  upon  a  writ  of  habeas  corpus.  He 
acts  not  ministerially  but  judicially  (3  Hill,  Appendix,  Note  4). 
The  statute  gives  him  the  right  to  imprison  (§  34),  and  where 
an  authority  is  created  by'statute  with  power  to  fine  or  im- 
prison, the  officer,  person  or  body,  invested  with  such  authority, 


YORK—  MARCH,  1866.        .         575 


Bryant  v.  The  American  Telegraph  Company. 


is,  for  that  purpose,  deemed  a  court  (DenbawcTs  Case,  11  Coke, 
103  ;  Grenville  v.  The  College  of  Physicians,  12  Mod.,  383  ; 
Groenvelt  v.  Burwell,  1  Comyns'  R,  76  ;  Id.,  1  Salk.,  200  ;  3  Bl. 
Com.,  24;  Briggs  v.  MackeUar,  2  Abbott's  Pr.  R.,  61). 

The  power,  therefore,  which  a  judge  exercises  upon  habeas 
corpus  to  inquire  into  the  cause  of  the  detention  where  a  party 
is  deprived  of  his  liberty  is,  in  the  language  of  the  statute  of 
1864,  as  applied  to  cases  like  this,  a  review  by  a  court  of 
superior  jurisdiction  to  the  magistrate  making  the  commitment. 

This  disposes  of  all  the  questions  before  me  ;  and  the  parties 
brought  up  upon  the  several  writs  will  be  remanded  or  dis- 
charged, according  as  the  decision  affects  their  several  cases. 


JONATHAN  P.  BRYANT  and  others  v.  THE  AMERICAN  TELE- 
GKAPH   COMPANY. 

A  clause  in  the  printed  condition  of  a  telegraph  company,  that  they  will  not 
be  responsible  for  mistakes  or  delay  in  the  transmission  of  a  message,  applies 
merely  to  the  transmission  of  the  message,  and  not  to  mistakes,  or  a  delay  in 
the  delivery  of  the  message,  after  it  has  been  correctly  transmitted. 

The  plaintiffs  sent  a  message  to  the  defendants'  office  in  New  York,  addressed 
to  an  attorney  in  Providence,  Rhode  Island,  directing  him  to  attach  a  house 
aud  lot  in  that'city,  of  one  B.,  who  was  then  temporarily  absent  from  Rhode 
Island,  for  a  debt  of  twelve  thousand  dollars,  due  by  B.'s  firm  to  the  plain- 
tiff. The  message  was  brought  to  the  defendants'  office,  at  half  past  eight 
P.  M.,  which  was  then  closed  for  the  ordinary  transaction  of  business.  Their 
agent  was  told  that  the  message  was  important ;  that  unless  it  was  sent  and 
deli vered  at  once  it  would  be  of  no  use ;  that  the  object  of  the  message  was 
to  get  an  attachment  upon  property  in  Providence ;  that  unless  it  was 
made  before  the  Stonington  train  reached  the  Rhode  Island  State  line,  it 
would  do  no  good  ;  that  he  would  consequently  see  the  importance  of  the 
matter,  and  why  the  plaintiffs  were  so  urgent.  The  defendants'  clerk 
assured  the  plaintiffs'  messenger  that  the  message  would  be  sent  and  deliv- 
ered as  he  wished,  and  that  he  would  not  take  the  money  if  he  thought 
there  was  any  doubt  about  it.  The  message  was  sent  at  ton  minutes  past 
nine,  with  directions  from  the  operator  in  New  York  to  send  It  in  haste,  and 
was  received  by  the  operator  in  Providence  at  half-past  nine  P.  M.,  who  was 
then  engaged  in  receiving  reports  for  the  press,  which,  by  statute,  have  pre- 


576  COUET  OF  COMMON  PLEAS. 

Bryant  v.  The  American  Telegraph  Company. 

cedence  over  all  other  matters.  The  Providence  operator  answered  that  it 
could  not  be  sent  that  night,  as  the  delivery  boy  had  gone  home,  to  which 
the  other  answered  that  it  must  be,  and  the  former  replied  by  a  sign  express- 
ing his  concurrence.  The  Providence  operator  was  engaged  without  cessa- 
tion in  receiving  newspaper  reports  until  half-past  eleven  o'clock  P.  M.,  when 
lie  had  the  message  copied,  and  sent  to  the  attorney.  "When  the  attorney  re- 
ceived it,  it  was  too  late  to  have  the  attachment  made,  before  the  arrival  of  B., 
•who  returned  to  Rhode  Island  in  the  Stonington  train  that  morning,  and  the 
plaintiffs  lost  the  advantage  of  securing  their  debt  by  an  attachment  upon 
B.'s  house  and  lot,  which  was  worth  over  twelve  thousand  dollars.  B.'s  firm 
afterwards  went  into  bankruptcy,  and  all  that  the  plaintiffs  recovered  upon 
their  debt  from  the  bankrupt  estate  was  five  hundred  dollars. 

Held,  that  the  plaintiffs  were  not  bound  to  exhaust  their  legal  remedy  against 
their  debtors  by  the  recovery  of  a  judgment  and  the  issuing  of  an  execution 
before  bringing  an  action  against  the  telegraph  company  for  the  recovery 
of  damages. 

Held,  that  the  measure  of  damages  was  the  amount  of  the  debt  and  interest 
from  the  day  of  the  delivery  of  the  message,  less  the  five  hundred  dollars 
•which  the  plaintiffs  had  received  from  the  bankrupt  estate  of  B.'s  firm. 
DALY,  F.  J.,  dissenting. 

The  judge,  at  the  trial,  was  requested  to  charge  that  the  only  damages  which 
the  plaintiffs  could  recover,  was  the  amount  paid  for  sending  the  message, 
with  such  other  expenses  as  were  incident  to  it,  which  the  judge  refused ; — 
Held,  that  the  refusal  was  correct.  DALY,  P.  J.,  dissenting. 

The  facts  of  this  case  sufficiently  appear  in  the  opinion  of 
DALY,  F.  J. 

Lewis  B.  Woodruf,  for  appellants.  • 
JB.  (&  S.  D.  Gozzens,  for  respondents. 

DALY,  F.  J. — This  action  was  brought  to  recover  damages  for 
a  delay  on  the  part  of  the  telegraph  company  in  delivering  a 
message  in  Providence,  by  which  the  plaintiifs  lost  the  oppor- 
tunity of  attaching  a  house  and  lot  in  that  city,  belonging  to 
one  Bennett,  a  member  of  the  firm  of  J.  H.  Stury  &  Co., 
who  were  indebted  to  the  plaintiffs  in  the  sum  of  twelve  thou- 
sand dollars. 

The  property  of  Bennett  could  be  attached  at  the  suit  of 
creditors  only*  while  he  was  without  the  State  of  Rhode  Island. 
He  was  seen  in  the  city  of  New  York  by  Draper,  one  of  the 
plaintiffs,  on  the  24th  of  February,  1860,  and  left  by  the  four 
o'clock  afternoon  train  of  that  day  for  Providence.  About  fif- 


NEW  YORK— MAECH,   1SG6.  57T 

Bryant  v.  The  American  Telegraph  Company. 

teen  minutes  past  four,  Draper  learned  that  the  firm  were  not 
able  to  meet  their  engagements,  and  that  Bennett  was  on  his 
way  to  Providence,  upon  ascertaining  which,  he  went  to  the 
plaintiffs'  attorney,  and  directed  him  to  send  a  dispatch  to 
Providence  to  have  Bennett's  house  and  lot  attached  for  the 
debt.  At  half-past  eight  o'clock  in  the  evening,  the  attorney 
went  to  the  telegraph  office  of  the  defendants,  in  this  city, 
which  was  then  closed  for  the  ordinary  transaction  of  business, 
and  asked  if  the  line  was  open  to  Providence,  and  if  a  message 
could  be  sent  there  without  delay.  The  clerk  who  was  in  at- 
tendance answered  in  the  affirmative,  upon  which  the  attorney 
told  him  that  the  message  was  important,  and  unless  it  could 
go  there  "  right  away,  and  be  delivered  at  once,"  it  would  be 
of  no  use.  The  clerk  assured  him  that  it  could  be  sent  and  de- 
livered as  he  wished,  and  gave  the  attorney  a  printed  paper 
containing  the  conditions  upon  which  the  defendants  agreed  to 
transmit  messages,  beneath  and  subject  to  which  the  attorney 
wrote  down  the  message  to  be  sent.  It  was  addressed  to  a  Mr. 
Payne,  an  attorney  in  Providence,  directing  him  to  sue  J.  H. 
Stury  &  Co.,  at  the  suit  of  the  plaintiffs,  for  twelve  thou- 
sand dollars  upon  promissory  notes,  and  to  attach  Bennett's 
house  and  lot  in  Providence,  advising  him  that  it  must  be  done 
before  the  Stonington  train  entered  the  State  of  Rhode  Island. 
The  attorney  then  told  the  clerk  that  the  object  of  the  message 
was  to  get  an  attachment  upon  property  ;  that  unless  it  was 
made  before  the  Stonington  train  reached  the  State  line,  it 
would  do  no  good,  and  that  under  such  circumstances,  he  would 
see  the  importance  of  the  matter,  and  why  he,  the  attorney, 
was  so  urgent  to  know  whether  the  message  could  be  carried 
and  delivered  u  right  away."  The  clerk  answered  that  of 
course  it  would  go  right  away,  and  that  he  wonld  not  take  his 
money  if  he  thought  there  was  any  doubt  about  it.  The  attor- 
ney'then  paid  him  three  dollars  and  eighteen  cents  ;  the  clerk 
took  the  message  to  the  operator,  and  after  being  absent  a  few 
minutes,  returned  and  said  :  "  It  is  half  off  on  its  wuy,  and  it 
will  be  there  right  off."  It  was  then  ten  minutes  past  nine 
o'clock.  The  message  was  received  by  the  operator  in  Provi- 
dence at  thirty  minutes  past  nine,  with  a  direction  from  tho 
operator  in  New  York  to  send  it  in  haste.  The  operator  in  Prov- 
idence was  then  engaged  in  receiving  reports  for  the 
3Y 


578  COURT  OF  COMMON  PLEAS. 

Bryant  v.  The  American  Te'egraph  Company. 

which  by  statute  are  entitled  to  precedence  over  all  other  mat- 
ters, and  the  operator  then  replied  that  the  message  could  not 
be  sent  that  night,  as  the  delivery  boy  had  gone  home.  The 
operator  in. New  York  responded  that  it  must  be  delivered,  and 
the  other  answered  O.  K.,  a  sign  expressive  of  his  concurrence. 
The  operator  in  Providence  was  engaged  without  cessation  in 
leceiving  newspaper  reports  until  half-past  eleven  o'clock,  when 
availing  himself  of  the  cessation  of  the  reports  for  awhile,  he 
had  the  message  copied,  and  a  person  coming  in  at  the  time 
with  refreshments,  he  sent  it  by  him  to  Mr.  Payne,  a  few  min- 
utes after  half-past  eleven.  Mr.  Payne  was  aroused  from  his 
bed,  and  the  telegram  delivered  to  him,  but  it  was  then  too 
late  to  have  the  attachment  made  before  the  arrival  of  Bennett 
in  the  State. 

The  house  and  lot  which  the  plaintiffs  meant  to  attach  was 
worth  over  twelve  thousand  dollars.  There  was  a  mortgage 
upon  the  lot  forlen  thousand  dollars,  but  the  mortgage  had  not. 
been  recorded,  and  it  would  seem  that  by  the  laws  of  Rhode 
Island  an  unrecorded  mortgage  is  no  lien  against  an  .attachment. 
"Within  a  few  days  afterwards  the  mortgage  was  recorded,  and 
during  the  same  month  .the  firm  of  J.  II.  Sfury  &  Co.  went 
into  bankruptcy  in  Massachusetts.  The  house  and  lot  was  sold 
under  the  mortgage  for  twelve  thousand  dollars  and  twenty -five 
cents,  and  all  that  the  plaintiffs  have  received  upon  their  debt 
has  been  five  hundred  dollars.  Upon  this  state  of  facts  they 
obtained  a  verdict  against  the  defendants  for  twelve  thousand 
one  hundred  and  forty-five  dollars  and  fifty-five  cents,  being 
the  amount  of  their  debt  and  interest,  less  the  five  hundred  dol- 
lars collected  by  them. 

The  defendants  moved  for  a  nonsuit,  upon  the  ground  that 
they  were  not  responsible,  as  this  was  an  unrepeated  message. 

The  printed  conditions  state  that  in  order -to  guard  against 
mistakes  in  the  transmission  of  messages,  every  message  of  im- 
portance ought  to  be  repeated  by  being  sent  back  from  the  sta- 
tion at  which  it  had  been  received,  to  the  station  from  which  it 
•was  originally  sent.  The-company  also  limit  their  liability  for 
mistakes  or  delays  in  the  transmission  or  delivery  of  repeated 
messages  to  an  amount  not  exceeding  five  hundred  times  the 
amount  paid  for  sending  the  message,  and  it  is  further  provided 
that  the  company  will  not  be  responsible  for  mistakes  or  delays 


NEW   YOEK— MARCH,  I860.  579 

Bryant  v.  The  American  Telegraph  Company. 

in   the   transmission   of  unrepeated  messages  from   whatever 
cause  they  may  arise. 

It  is  apparent  from  the  wording  of  the  conditions  that  there 
is  a  distinction  between  the  transmission  and  the  delivery  of  a 
message  ;  that  the  first  means  its  transmission  from  the  office 
or  station  at  which  it  is  received,  to  the  one  to  which  it  is  sent; 
and  the  other,  the  delivery  of  it  to  the  person  to  whom  it  is 
addressed.  The  clause  relating  to  messages  which  are  repeated, 
refers  to  mistakes  or  delays  in  their  transmission  or  delivery, 
while  that  which  relates  to  unrepeated  messages  refers  to  mis- 
takes or  delays  in  their  transmission  alone.  What  is  obviously 
meant  by  the  latter  clause  is,  that  the  company  will  not  be  re- 
sponsible for  any  mistake  or  delay  in  the  transmission  of  a  mes- 
sage, unless  it  is  repeated,  which  has  no  application  to  this 
case,  as  there  was  no  mistake  or  delay  in  the  transmission  of 
the  message,  but  the  delay  was  in  the  delivery  after  it  had 
been  correctly  transmitted.  That  the  message  had  not  been 
repeated,  therefore,  furnished  no  ground  for  granting  a  nonsuit. 

'  The  defendants  also  moved  for  a  nonsuit  upon  the  ground 
that  the  plaintiffs  had  not  shown  that  they  had  exhausted  all 
legal  remedies  against  their  debtors  by  judgment  and  execu 
tion,  but  this  was  a  matter  which  related  merely  to  the  amount 
of  the  damages,  and  did  not  affect  the  right  of  action.  The 
motion  for  a  nonsuit  was  therefore  properly  denied. 

When  the  evidence  was  closed  upon  both  sides,  the  defendant 
renewed  his  motion  for  a  nonsuit  upon  the  ground  that  the 
failure  of  the  plaintiffs  to  issue  their  attachment  in  time  was 
owing  to  the  want  of  proper  diligence  on  the  part  of  the  attor- 
ney in  Providence.  This  was  a  point,  however,  upon  which 
there  was  a  large  amount  of  conflicting  testimony,  and  the 
question  was  one  which  the  jury  alone  could  decide. 

Before  submitting  the  case  to  the  jury,  the  judge  was  requested 
to  instruct  them  that  the  only  damages  which  the  plaintiffs 
could  recover  was  the  amount  paid  by  them  for  sending 
the  message,  and  such  other  expenses  as  were  incidental  to  it, 
and  that  the  value  of  the  property  which  the  plaintiffs  meant 
to  attach  was  not  the  measure  of  damages.  The  judge  declined 
so  to  do,  and  at  the  close  of  his  charge  said  to  the  jury,  that  if 
they  found  for  the  plaintiffs,  the  amount  of  damages  should  l>e 
the  sum  which  the  plaintiffs  lost  by  not  having  the  property 


530  COURT    OF    COMMON    PLEAS. 

Bryant  v.  The  American  Telegraph  Company. 

attached,  namely,  twelve  thousand  dollars,  less  the  five  hun- 
dred dollars  which,  they  had  collected,  with  interest,  from  the 
day  when  the  telegram  was  sent.  The  property  was  sold  after- 
wards for  twelve  thousand  dollars  and  twenty-five  cents,  and 
this  was-making  the  value  of  the  property  to  the  extent  of  the 
plaintiffs'  debt  the  measure  of  the  damages,  which  was, 
I  think,  erroneous.  It  was  implying  that  if  this  delay 
had  not  taken  place  in  the  delivery  of  the  message,  the  attach- 
ment would  have  been  made  before  Bennett  returned  to 
the  State,  and  that  if  that  had  been  the  case,  the  plaintiffs 
would  have  obtained  their  debt. 

This  was  assuming  many  contingencies  that  might  or  might 
not  happen,  viz. :  that  the  attachment  would  have  been  issued 
and  levied  in  time,  that  all  the  proceedings  upon  it  would  have 
been  regular,  that  the  plaintiffs  would  have  obtained  a  judg- 
ment, and  that  twelve  thousand  dollars  would  have  been  col- 
lected upon  the  execution  and  paid  to  them,  in  satisfaction  of 
their  debt.  All  this  might  have  happened,  but  that  it  would, 
was  not  sufficiently  certain  to  warrant  the  assumption  of  all 
these  circumstances,  as  a  basis  for  the  measure  of  damages.  It 
was,  as  Judge  STOEY  remarked  in  the  case  of  The  Schooner 
Lively  (1  Gallison  R.,  314:),  "  a  calculation  upon  conjectures 
and  not  upon  facts." 

The  plaintiffs  have  not  lost  anything  which  they  ever  pos- 
sessed. They  lost  the  chance  of  availing  themselves  of  a  newly 
discovered  and  extraordinary  means  of  transmitting  intelligence 
which,  in  their  case,  had  their  message  been  delivered  as  they 
wished,  might  have  enabled  them  to  take  advantage  of  the 
circumstance  of  the  temporary  absence  of  their  debtor, 
and  attach  his  property  for  the  amount  of  their  debt.  Assum- 
ing that  that  would  have  been  done  had  their  message  been 
delivered  immediately  after  its  arrival  in  Providence,  the  only 
conclusion  which  it  would  warrant  would  be  simply  that  they 
lost  such  security  for  the  collection  of  their  debt  an  would  be 
afforded  by  the  issuing  and  levying  of  an  attachment,  but  every- 
thing beyond  that  was  mere  matter  of  conjecture.  For  all  that 
was  known  to  the  jury,  the  debtors  may  have  had  a  defence  to 
the  claim  in  whole  or  in  part.  It  does  not  follow  because  an 
attachment  is  procured  that  a  judgment  will  also  be  obtained  ; 
yet  that  presumption  has  to  be  drawn  in  this  case  to  warrant 


NEW  YORK— MARCH,  1866.  5S1 

Bryant  v.  The  American  Telegraph  Company. 

the  still  further  presumption,  that  the  plaintiffs  lost  their  debt 
because  they  did  not  obtain  the  attachment. 

The  plaintiffs'  debt  has  not  been  extinguished  or  discharged. 
They  cannot  be  said  to  have  lost  it  absolutely,  as  long  as  Ben- 
nett and  the  other  three  members  of  his  firm  remain  Uable  for 
it.  They  were  discharged  as  insolvents  in  Massachusetts,  but 
that  discharge  is  confined  to  that  State,  and  does  not  exempt 
them  from  liability  in  other  States  or  countries.  They  may  all 
be  insolvent  now,  and  unable  to  pay,  but  this  would  not  warrant 
the  presumption  that  they  will  always  remain  so.  In  the  con- 
tingencies of  human  affairs,  any  one  of  them  may  become  pos- 
sessed of  property  hereafter,  and  be  compelled  to  pay  this  debt 
within  the  period  during  which  it  will  sufvive  as  an  existing 
obligation  against  them. 

It  is  suggested  that  if  the  defendants  should  pay  this  verdict, 
they  would,  having  paid  the  plaintiffs'  debt,  become  subrogated 
to  all  the  rights  which  the  plaintiffs  had  to  it,  and  would  be 
entitled  thereafter  to  maintain  an  action  against  the  debtors  for 
its  recovery.  Where  a  surety,  to  discharge  his  own  responsi- 
bility, pays  the  debt,  or  where  a  party  having  an  interest  in 
land,  for  his  own  protection  pays  off  an  incnmbrance,  he  takes 
the  place  of  the  former  creditor,  or  as  it  is  expressed  in  the 
law,  is  subrogated  to  all  his  rights  in  respect  to  the  debt,  and 
may  enforce  the  payment  of  it  (Hayes  v.  Ward,  4  Johns.  C.  R., 
123:  Sandford  v.  McLean,  3  Paige,  117;  Jenkins  v.  Conti- 
nental Ins.  Co.,  12  How.,  66).  But  I  do  not  deem  it  necessary 
to  inquire  whether  the  defendants  would  come  within  this  rule 
or  not,  if  they  should  pay  this  verdict,  as  the  point  is  wholly 
immaterial  to  the  question  now  before  us.  We  are  to  decide 
what  is  the  proper  measure  of  damages,  and  that  is  a  question 
which  must  be  determined  by  the  contract  alone. 

In  the  recent  work  of  Mr.  Mylne  upon  damages,  he  remarks 
that  in  the  case  of  contract,  the  measure  of  damages  is  much 
more  strictly  confined  than  in  cases  of  tort,  and  that  to  hold  a 
party  who  fails  to  perform  a  contract  responsible  for  all  that 
the  other  party  ultimately  hoped  to  get  by  it,  or  which  it  is 
possible  he  might  have  obtained,  would  be  to  make  him  an  in- 
surer without  any  premium  for  undertaking  the  risk,  and  upon 
the  well-considered  case  of  IIadl<y  v.  Bajxndale  (9  Excq.  It., 
341),  he  lays  down  the  rule  which  governs  in  all  cases  of  breach 


5S2  COURT  OF  COMMON  PLEAS. 

Bryant  v.  The  American  Telegraph  Company. 

of  contract,  a  rule  which  was  approved  and  acted  upon  in  this 
State,  in  Griffin  v.  Colver  (16  N.  Y.  Rep.,  439),  and  in  Land>s- 
lerger  v.  The  Magnetic  Telegraph  Company  (32  Barb.  B,.,  530), 
that  the  damages  are  such  as  appears  to  have  been  contem- 
plated by  both  parties  when  the  contract  was  entered  into. 
Mylne  on  Damages,  6,  15.  In  deciding  the  case  of  Hadley  v. 
jBaxendale,supra,T$&TOT\  ALDERSON  said:  "  If  the  special  circum- 
stances under  which  a  contract  is  made,  are  communicated  and 
known  to  both  parties,  the  damages  resulting  from  the  breach 
of  it,  which  they  would  reasonably  contemplate,  would  be  the 
amount  of  injury  which  would  ordinarily  follow  from  a  breach 
of  the  contract  under  the  special  circumstances  so  known  and 
communicated.  '  Bift  on  the  other  hand,  if  these  special  cir- 
cumstances were  wholly  unknown  to  the  party  making  the 
contract,  he,  at  most,  could  only  be  supposed  to  have  had  in  his 
contemplation  the  amount  of  injury  which  would  arise  gener- 
ally, and  in  the  great  multitude  of  cases  not  affected  by  any 
special  circumstances  from  such  a  breach  of  contract." 

In  the  present  case,  the  circumstances  known  or  communi- 
cated to  the  defendants  when  they  made  the  contract,  will  not 
warrant  the  conclusion  that  they  undertook  to  deliver  the  mes- 
sage with  the  understanding  that  they  were  to  be  answerable  for 
the  amount  of  the  debt  if  it  should  be  lost  through  their  failure  to 
deliver  the  message  immediately  after  its  arrival  in  Providence, 
and  unless  such  was  the  case,  they  cannot  be  said,  within  the 
meaning  of  this  rule,  to  have  contemplated  a  liability  in  dam- 
ages to  that  extent. 

They  were  under  no  obligation  to  enter  into  any  such  en- 
gagement. The  plaintiffs,  in  view  of  the  importance  of  time, 
and  of  the  contingencies  which  might  happen,  had  not  been 
especially  diligent.  They  knew  of  the  presence  of  Bennett  in 
this  city  before  four  o'clock  in  the  afternoon,  and  yet  nearly 
five  hours  were  suffered  to  elapse  before  their  attorney  came  to 
the  defendants'  office  to  have  the  message  sent.  It  was  then 
in  the  evening,  and  after  the  office  had  been  closed  for  the  or- 
dinary transaction  of  business,  and  if  the  plaintiffs  failed  to  get 
their  message  delivered  in  time,  it  was  owing  to  the  late  hour 
at  which  they  brought  it  for  transmission,  and  to  a  state  of 
facts,  very  natural  under  the  circumstances, existing  at  the  of- 
fice in  Providence,  when  the  message  was  received. 


NEW  YOEK— MAY,   1865.  583 

Bryant  v.  The  American  Telegraph  Company: 

Brought  to  them  at  such  an  hour,  and  liable  to  such  contin- 
gencies as  upon  this  occasion  did  happen,  the  defendants  were 
not  bound  to  transmit  and  deliver  it  within  a  certain  time  that 
night,  upon  the  understanding  that  they  were  to  be  answerable 
in  the  sum  of  twelve  thousand  dollars,  if  they  failed  to  do  so. 
They  might  certainly  make  such  an  agreement,  but  where  the 
compensation  was  so  small,  and  the  risk  so  great,  it  will  not  be 
interred  that  they  did,  unless  the  circumstances  clearly  show 
that  such  was  the  understanding  of  botli  parties. 

In  a  case  before  the  Court  of  Queen's  Bench,  in  Canada, 
(Kingshorm  v.  The  Montreal  Telegraph  Co.  Decisions  by  Eng- 
lish French  and  American  Courts  iipon  Telegraphic  Commun- 
ications, TTtica,  N~.  Y.,  1863),  the  question  of  the  liability  of  tele- 
graphic companies,  in  jdamages,  for  negligence  in  the  transmis- 
sion and  delivery  of  messages,  came  under  consideration,  and 
Justice  McLEAN  said  :  '•  It  is,  in  my  opinion,  extremely  doubt- 
ful whether  in  any  such  case,  a  party  who  avails  himself  of  the 
facilities  afforded  in  communicating  by  telegraph,  can  expect 
that  a  telegraph  company  shall  be  responsible  for  all  damages, 
no  matter  what  amount,  which  may  arise  in  the  hurry  of  trans- 
mitting a  message,  from  any  verbal  inaccuracy  of  an  operator,  or 
from  an  omission  in  forwarding  or  delivering  it  when  received. 
It  ought  not  to  be  expected  that  so  great  facilities  are  to  be 
afforded  for  so  small  a  remuneration,  and  at  n  risk  that  might 
bring  ruin  upon  any  company,  if  obliged  to  indemnify  for 
every  possible  loss.  Where  parties  desire  to  establish  such  a 
responsibility,  it  should  be  arranged  with  the  telegraph  com- 
pany or  its  agents,  and  then  every  information  should  be  given 
as  to  the  importance  of  the  message  desired  to  be  sent." 

The  promise  of  the  clerk  that  the  message  thould  be  deliv- 
ered at  once  upon  its  arrival  in  Providence,  cannot  be  construed 
into  an  express  or  special  agreement  on  his  part,  that  the  com- 
pany would  be  responsible  for  this  debt  of  twelve  thousand 
dollars,  if  through  their  failure  to  deliver  the  message  immedi- 
ately, the  plaintiffs  should  fail  in  getting  their  attachment.  If 
Biich  a  responsibility  can  arise  only, as  Justice  MoLnAN  suggests, 
where  it  is  established  by  an  arrangement  with  the  company  or 
its  agents,  and  where  every  information  is  given  to  show  the 
importance  of  the  message,  then  there  was  wanting  in  this  case, 
either  any  express  arrangement  to  that  effect,  or  such  a  dis- 


584  COURT  OF  COMMON  PLEAS. 

« 

Bryant  v.  The  American  Telegraph  Company. 

closure  of  the  circumstances  to  the  clerk  as  to  wan  ant  the  con- 
clusion that  he  knew  exactly  what  would  be  'gained  if  the  at- 
tachment was  made,  or  lost,  if  it  should  not  be  procured.  He 
was  not  advised  of  the  important  fact  that  the  firm  of  J.  H. 
Sturdy  &  Co.  were  insolvent;  that  the  house  and  lot  of  Ben- 
nett was  unincumbered,  and  that  if  attached,  it  was  of  sufficient 
value  to  pay  the  debt,  nor  can  he  be  presumed  to  have  had  a 
lawyer's  knowledge  of  the  time  that  would  be  requisite  to  make 
an  attachment,  and  of  the  leg-al  effect  of  it.  These  were  all 
very  material  circumstances  which  should  at  least  have  been 
known  to  him,  before  it  can  be  said  that  he  undertook  that  his 
principals  should  be  responsible  for  the  debt,  if  through  a  delay 
in  delivering  the  message,  the  plaintiffs  should  fail  to  get  the 
attachment. 

The  legal  obligation  of  those  who  publicly  engage  in  tho 
business  of  transmitting  intelligence  by  means  of  electric  tele- 
graph is,  in  some  of  its  aspects,  to  be  likened  to  that  of  common 
carriers,  but  there  is  a  very  material  difference  as  to  the  ex- 
tent of  their  liability.  In  the  case  of  the  carrier,  the  package 
or  property  he  is  to  carry  is  placed  in  his  custody.  He  has  for 
the  time  being  exclusive  control  and  dominion  over  it,  and  ne- 
cessarily knows  if  he  fails  to  deliver  it,  that  the  value  of  it 
will  be  lost  to  the  person  who  entrusted  it  to  his  care.  But 
those  who,  like  the  defendants,  undertake  to  transmit  intelli- 
gence, do  not  necessarily  know  what  may  be  the  effect  if  the 
message  should  fail  to  reach  the  person  to  whom  it  is  addressed, 
and  should  not  be  held  answerable  for  all  the  possible  conse- 
quences, unless  it  can  be  assumed  from  the  circumstances 
disclosed  to  them,  that  they  knew  exactly  what  was  depen- 
dent upon  it,  and  what  would  be  the  result  in  point  of  dam- 
ages, if  they  failed  to  deliver  it. 

If  thus  advised,  they  understand  the  extent  and  nature  of 
the  risk  they  assume,  and  may  protect  themselves  against  the 
mischances  to  which  all  human  undertakings  are  subject,  by 
making  a  special  agreement  as  to  the  damages  in  the  event  of 
failure,  and  at  the  same  time  an  opportunity  is  afforded  them 
to  require  a  compensation  proportioned  to  the  risk,  as  well  as  to 
exercise  unusual  vigilance ;  -a  very  material  consideration 
where  a  heavy  liability  may  depend  upon  the  delivery  of  a 
message  within  a  limited  point  of  time.  If  they  are  to  be  an- 


NEW  YOKE— MAY,   1865.  585 

Bryant  v.  The  American  Telegraph  Company. 

swerable  for  all  the  consequences  of  mischance  and  failure, 
they  should  certainly  be  informed  of  all  the  material  circum- 
stances known  to  the  party  who  avails  himself  of  the  facilities 
they  afford,  for  they  cannot  be  supposed  to  contemplate  the 
happening  of  events,  unless  apprised  of  the  facts  which  render 
their  occurrence  probable  or  possible. 

In  Landsberger  v.  The  Magnetic  Telegraph  Co.  (32  Barb. 
R.,  5^0),  the  plaintiffs  agreed  to  purchase  a  quantity  of  pistols 
in  New  York,  for  a  party  in  San  Francisco.  The  pistols  were 
to  be  shipped  by  the  steamer  of  a  particular  date  ;  the  plaintiffs 
were  to  have  a  commission  for  making  the  purchase,  and  were 
to  forfeit  five  hundred  dollars  if  they  failed  in  performing  the 
agreement.  To  enable  them  to  execute  it,  they  transmitted  ten 
thousand  dollars  from  San  Francisco  to  New  York,  one  of  the 
plaintiffs  expecting  to  reach  New  York  about  the  time  of  the 
arrival  of  the  money.  He  was  unexpectedly  detained,  how- 
ever, upon  liis  route,  and  that  the  pistols  might  be  purchased 
and  shipped  within  the  time  agreed  upon,  lie  sent  a  telegraphic 
message  from  New  Orleans  to  his  firm  in  New  York,  advising 
them  of  what  was  necessary  to  be  done  in  the  execution  of  the 
contract,  and  informing  them  where  .they  would  get  the  ten 
thousand  dollars.  The  telegraph  company,  in  transmitting  the 
message,  made  a  mistake  in  the  name  of  the  plaintiffs'  firm,  in 
consequence  of  which,  the  message  did  not  reach  them  until  it 
was  too  late  to  perform  the  contract,  whereby  they  not  only 
lost  their  commissions,  but  had  to  pay  the  five  hundred  dollars 
according  to  the  stipulation  in  the  agreement.  It  was  held 
that  they  could  not  recover  either  of  these  items  as  damages 
against  the  company,  upon  the  ground,  that  as  the  telegraph 
company  were  not  informed  of  the  use  that  was  to  be  made  of 
the  money,  and  of  the  consequences  that  would  follow  a  delay 
in  the  receipt  of  it,  they  could  not  be  presumed  to  contemplate 
any  other  damage  from  a  delay  in  the  delivery  of  the  message 
except  the  loss  of  the  interest  upon  the  money,  nine  dollars 
and  fifty -nine  cents,  which,  with  the  sum  paid  for  transmitting 
the  message,  was  held  to  be  all  which  the  plaintiffs  could  re- 
cover. 

In  the  case  now  before  us  the  clerk  may  be  presumed  to 
have  understood  that  if  the  message  was  not  delivered  immedi- 
ately, the  plaintiffs  would  lose  the  opportunity  of  getting  the 


586  COURT    OF    COMMON    PLEAS. 

Bryant  v-  The  American  Telegraph  Company. 

attachment,  but  Le  cannot  be  supposed  to  have  understood 
also,  that  that  was  the  only  means  left  to  the  plaintiffs  for  the 
recovery  of  their  debt,  and  to  have  contemplated  that  if  that 
failed  through  a  delay  in  the  delivery  of  the  message,  the 
plaintiffs  would  lose  twelve  thousand  dollars,  and  that  his  em- 
ployers would  have  to  pay  it.  Indeed,  I  think  it  may  be  fairly 
assumed,  that  if  he  had  understood  that  the  message  was  to  be 
delivered  immediately  under  such  an  onerous  responsibility, 
he  would  either  have  declined  at  that  hour  of  the  evening  to 
enter  into  any  such  engagement,  or  if  he  had  entered  into  it, 
that  he  would  have  exercised  extraordinary  vigilance,  and 
would  have  satisfied  himself  by  further  communication  that 
it  had  been  duly  delivered. 

In  Parker  v.  The  Alia  California  Telegraph  Company  (13 
Cal.  R.,  422),  the  defendants,  through  an  accident,  delayed  for 
fourteen  hours,  to  send  a.  message,  by  which  the  plaintiff's 
agent  was  directed  to  attach  a  debtor's  property  for  a  debt  of 
one  thousand  eight  hundred  dollars,  in.  consequence  of  which 
delay,  other  persons  obtained  attachments,  which  absorbed  the 
whole  of  the  property.  The  Supreme  Court  of  California  held 
that  the  plaintiff  might  recover  from  the  company  the  amount 
of  the  debt  as  damages  ;  and  they  ordered  a  new  trial  on  that 
ground.  All  that  I  deem  it  necessary  to  say  in  respect  to  this 
decision  is,  that  the  Court  do  not  support  their  opinion  by  any 
reference  to  adjudged  cases,  and  that  after  giving  it  the  re- 
spectful consideration  to  which  the  judgment  of  every  superior 
tribunal  is  entitled,  I  am  not  satisfied  of  the  correctness  of  the 
reasoning  upon  whicji  it  is  founded. 

In  my  opinion,  all  that  the  plaintiffs  could  recover  in  tho 
present  case,  was  what  they  paid  for  transmitting  the  message, 
and  such  expenses  as  were  incidental  thereto,  and  a  new  trial, 
in  my  judgment,  should  be  ordered. 

BEADY,  J. — The  telegram  which  the  defendants  undertook 
to  transmit  and  deliver,  was  important,  and  on  its  face  showed 
that  its  design  was  to  secure  the  commencement  of  legal 
proceedings  against  the  plaintiffs'  debtors  by  attachment,  be- 
fore the  Stonington  train  entered  the  State  of  Rhode  Island. 
The  amount  of  the  debt  also  appeared  in  the  telegram.  In  ad- 
dition to  this,  the  defendants'  agent "  was  shown  the  importance 


NEW  YOEK— MAY,  1865.  587 

Bryant  v.  The  American  Telegraph  Company. 

of  it,"  and  he  was  told  that  it  was  to  "  make  an  attachment  on 
property,"  and  further,  that  unless  the  attachment  was  made 
before  the  Stonington  train  reached  the  Rhode  Island  State 
line,  it  would  do  no  good  at  all.  The  plaintiffs'  attorney  not 
only  paid  the  price  asked  for  the  transmission  and  delivery, 
but  after  showing  the  importance  of  the  telegram,  he  said  to 
the  operator  or  agent  of  the  defendants  :  "  If  there  is  any  extra 
expense,  or  likely  to  be,  about  sending  this  dispatch  right  away 
I  want  you  to  tell  me  what  it  is,  and  I  will  pay  it  on  the  spot." 
The  defendants  must  be  regarded,  therefore,  as  having  been 
advised  of  the  importance  of  the  telegram,  and  being  advised 
of  it,  to  have  contemplated  the  consequences  that  might  ensue 
from  a  failure  to  transmit  and  deliver  it.  The  compensation 
asked  for  assuming  the  performance  of  the  service  demanded, 
was  paid,  and  any  additional  sum  was  offered,  which  would  be 
necessary,  or  likely  to  become  so,  to  secure  the  transmission  and 
delivery  desired.  The  defendants  cannot  avail  themselves, 
therefore,  of  the  principle,  that  their  compensation  was  not  com- 
mensurate with  the  risk  incurred,  assuming  the  risk  to  have 
been  hazardous.  It  was  not  so,  however.  The  line  was  work- 
ing well — the  communication  was  intact — the  operators  em- 
ployed at  either  end  of  the  route  capable,  the  one  of  translating 
and  the  other  of  receiving  the  telegram,  and  it  was  transmitted 
without  delay.  The  mischief  done  to  the  plaintiffs  was  occa- 
sioned not  by  the  failure  to  transmit,  but  by  gross  negligence 
in  the  delivery  of  the  message  at  Providence.  The  case  is  en- 
tirely free  from  any  question  of  transmission.  A  few  moments' 
attention  would  have  averted  all  the  loss  the  plaintiffs  have 
sustained,  and  the  litigation  which  has  sprung  up  between  the 
parties  hereto.  It  the  defendants  are  held  responsible  to  the 
extent  of  the  verdict  herein,  it  may  be  burdensome,  or  it  may  bo 
a  severe  punishment  for  what  seems  to 'be  a  slight  misfeasance 
when  measured  by  the  compensation  given.  But  it  must  not  be 
forgotten  that  no  fraud  was  practiced  upon  the  defendants.  They 
were  not  asked  to  assume  a  responsibility  not  disclosed.  The 
telegram  was  not  only  subject  to  their  inspection,  but  explained 
in  all  matters  relating  to  its  object  and  importance.  If  the  ad- 
ministration of  justice  requires  that  'the  judgment  pro- 
nounced in  this  case  should  be  maintained,  it  mint  bo.  We 
have  nothing  to  do  with  effects.  Was  the  judgment  right  ? 


588  COURT  OF  COMMON  PLEAS. 

Bryant  v.  The  American  Telegraph  Company. 

"Was  the  measure  of  damages  erroneous  or  not  ?  The  proof  es- 
tablishes that  the  attachment,  if  served,  would  have  been  a 
lien  upon  the  house  and  lot  of  Bennett,  one  of  the  debtors  of 
the  plaintiffs  ;  that  it  could  have  been  served  if  the  defendants 
had  delivered  the  telegram  diligently  after  its  receipt  at  Prov- 
idence ;  that  the  house  and  lot  which  would  have  been  covered 
and  secured  by  the  lien,  was  subsequently  sold  for  about  the 
amount  of  the  plaintiff's  claim  ;  that  the  debtor  who  owned  it, 
and  his  associates,  were  insolvent,  and  went  into  bankruptcy, 
and  that  the  debt  claimed  was  due  to  the  plaintiffs.  The  jury 
found,  in  accordance  with  this  proof,  and  upon  these  facts  the 
defendants  are  to  be  charged,  if  at  all.  They  could  not  gainsay 
these  facts,  or  any  of  them,  and  they  .attempt  to  shield  them- 
selves from  the  obligation  incurred,  by  the  doctrine  that  the 
damages  claimed  are  conjectural,  and  not  such  as  contem- 
plated by  the  contract  when  made.  Is  this  true  ?  Let  us  see 
what  was  contemplated  by  the  contract.  The  telegram  and  it's 
explanation  contemplated  an  attachment  on  a  house  and  lot  to 
secure  twelve  thousand  dollars,  before  the  Stonington.  train  en- 
tered the  State  of  Rhode  Island,  otherwise  it  would  do  no 
good,  and  that  unless  the  telegram  could  be  delivered  immedi- 
ately, the  attachment  could  not  be  secured.  No  other  sugges- 
tion can  dawn  upon  the  mind,  in  view  of  this  information,  than 
that  delay  might  wholly  destroy  the  efficacy  of  the  contem- 
plated process  of  attachment.  "  Ascertain  in  morning  if  mort- 
gage on  the  house  on  record  ;  if  so  withdraw  attachment,"  a 
part  of  the  telegram  itself,  in  the  absence  of  explanation,  advis- 
ing the  reader  that  the  house  and  lot  referred  to  would  be 
made  available  if  'the  process  was  served,  and  no  mortgage 
was  recorded  against  the  property.  In  other  words,  the  con- 
tract amounts  in  substance  to  this — If  you  deliver  that  telegram 
right  away  I  shall  secure  twelve  thousand  dollars  in  all  proba- 
bility ;  if  you  do  not,  I  will  not  send  it,  because  it  will  do  no  good. 
The  defendants  answer  and  say,  It  will  be  sent  at  once.  The 
plaintiffs  might  fail  in  accomplishing  the  purpose  of  the  tele- 
gram, it  is  true.  Mr.  Payne  might  be  absent,  leaving  no  per- 
son to  represent  him,  but  that  would  be  the  plaintiffs'  misfor- 
tune, and  not  the  liefendauts'  fault.  The  latter  have  not 
shown  that  the  attachment  could  not  have  been  made — the 
jury  have  found  that  it  could.  What  is  there  conjectural  up-- 


NEW  YORK— MAY,    1865.  589 

Bryant  v.  The  American  Telegraph  Company. 

on  these  facts  in  reference  to  the  damages  recovered  ?  This  is 
not  a  case  of  profits.  There  is  no  doubt  about  the  value  of  the 
house  and  lot.  The  contingency  related  to  the  service  of  the 
attachment,  not  to  the  damages.  If  that  service  could  be  made, 
then  the  result  of  it  cannot  be  doubted.  It  is  established  by 
the  evidence  and  verdict  of  the  jury.  That  the  debtors  have 
not  been  absolutely  and  forever  discharged  from  their  indebt- 
edness to  the  plaintiffs,  and  that  at  some  time,  and  in  some 
place,  in  which  the  discharge  obtained  may  not  avail  them, 
they  may  be  able  and  be  compelled  to  pay,  is  too  conjectural 
to  relieve  the  defendants  of  their  liability.  If  the  attach- 
ment had  been  served,  the  plaintiffs  would  not  have  been 
affected  either  by  the  bankruptcy  or  insolvency  of  their  debtors, 
inasmuch  as  the  property  upon  which  a  lien  was.  to  be  secured 
was  sufficient  to  pay  the  debt.  There  is  no  evidence  to  show 
that  a  judgment  might  not  have  been  obtained  in  that  proceeding 
— none  that  it  is  either  complicated  or  difficult.  It  seems  to  be  a 
very  simple  one,  and  that  it  could  have  been  successfully  pre- 
pared and  set  in  motion  is  established  by  the  jury,  and  that  it 
would  have  been  successful  ultimately,  must  be  inferred  from 
the  facts  that  no  defence  was  shown  to  the  claim,  and  that 
judgment  was  obtained  for  its  amount.  The  damages  shown 
are,  for  these  reasons,  such  as  may  fairly  be  supposed  to  have 
entered  into  the  contemplation  of  the  parties  when  the  con- 
tract was  made,  inasmuch  as  the  defendants  were  advised  of 
all  that  was  necessary  to  make  the  contract  appreciable. 
The  importance  of  the  telegram  was  shown  by  the  plaintiffs' 
attorney,  as  already  stated,  and  this  could  not  have  been  done 
without  explaining  the  circumstances  surrounding  the  plain- 
tiffs' debtors,  the  necessity  of  priority  in  issuing  the  attach- 
ment, and  that  it  should  be  served  before  the  Stonington  train 
reached  the  State  line  of  Rhode  Island.  In  the  case  of  Parka 
v.  Alia  California  Telepraph  Co.  (13  Cal.,  422),  the  defendants 
were  held  liable  for  the  amount  of  the  plaintiff's  debt,  which 
he  had  lost  in  consequence  of  the  negligence  of  the  defendants 
in  sending  a  dispatch  directing  an  attachment  to  be  served.  In 
that  case  it  appeared  that  owing  to  the  delay  in  its  delivery, 
other  attachments  had  been  served,  and  tho  assets  of  the  de- 
fendants exhausted  in  their  application  to  them,  to  tho  exclu- 
sion of  the  plaintiffs'  claim,  and  it  also  appeared  that  the  dcfen- 


590  COURT  OF  COMMON  PLEAS. 

Bryant  v.  The  American  Telegraph  Company. 

dants  were  insolvent.  The  court  in  that  case  says  :  "  It  seems 
to  us  that  the  loss  of  the  debt  would  be  the  natural  aiid  proxi- 
mate damages  resulting  from  the  breach  of  the  contract."  In 
Allen  v.  Suydam  (20  Wend.,  321),  it  was  held  that  where  the 
debt  was  lost  through  the  negligence  of  the  agent,  the  measure  of 
damages  prima  facie  is  the  amount  of  the  bill,  the  defendant  be- 
ing at  liberty  to  show  circumstances,  it  any  exist,  tending  to  mit- 
igate the  damages,  or  reduce  the  recovery  to  a  nominal  amount. 
They  have  not  shown  any  circumstances  or  mitigation.  There 
is  nothing  in  the  case  from  which  the  conclusion  may  be  justly 
drawn,  that  any  part  of  the  plaintiffs'  debt  can  be  collected 
from  their  debtors.  The  insolvency  of  the  latter  was  sufficient 
to  put  the  defendants  to  their  proof,  and  in  the  absence  of 
proof  to  the  contrary,  is  conclusive  evidence  of  the  loss  of  the 
debt,  taken  in  connection  with  the  other  facts  and  circum- 
stances of  this  case  (Parks  v.  Alta  California  Telegraph 
Company,  supra). 

For  these  reasons  I  find  it  impossible  to  resist  the  conclusion, 
upon  a  deliberate  consideration  of  the  facts  of  this  case,  that 
the  loss  of  the  plaintiffs'  debt  was  the  natural  and  proximate 
damages  resulting  from  the  failure  of  the  defendants  to  deliver 
the  telegram  as  agreed  upon.  It  has  not  been  thought  neces- 
sary to  consider  the  question  of  subrogation  further  than  to 
state  that  the  tender  of  the  promissory  notes  of  the  plaintiffs 
debtors  to  the  defendants,  have  placed  the  latter  in  a  position 
to  reap  all  the  advantages  of  the  debt. 

I  think  the  judgment  should  be  affirmed. 

Judge  CAKDOZO  concurred  with  Judge  BEADY. 
Judgment  affirmed. 


INDEX 


ABATEMENT  AND  REVIVAL. 

1.  An  appeal  from  a  judgment  in  de- 
fendant's favor  does  not  abate  by  the 
defendant's  death.      Schuschard   v. 

.  Heimer,  459 

2.  The  sole  defendant  in  an  action  hav- 
ing obtained  a  judgment  in  his  favor, 
died  pending  an  appeal  therefrom, 
proceedings  on  the  judgment  being 
stayed  in  the  mean  time, — Held,  that 
the  personal  representatives  of  such 
defendant  have  a  right  to  have  them- 
selves made  parties  to  the  appeal, 
and  this  should  be  done  by  motion 
to  the  court  in  the  manner  provided 
by  §  121  of  the  Code  of  Procedure. 

ib. 

3.  The  cause  of  action  in  a  replevin  suit 
survives  the  death  of  the  plaintiff, 
though  not  of  the  defendant,  and  the 
action  may  be  continued  in  the  name 
of  the  decedent's    representatives ; 
in  which  case  the  sureties  of  the  de- 
cedent OB  the  replevin  bond  continue 


liable.    Lahey  v.  Brady, 


443 


4.  The  plaintiff  in  a  replevin  suit  died 
pending  the  action,  and  the  defend- 
ant procured  an  order  against  his  ad- 
ministratrix that  she  continue  the  ac- 
tion, and  obtained  a  judgment  in  the 
action  against  her  by  default, — Held, 
that  the  action  was  properly  contin- 
ued, and  that  the  sureties  of  the 
plaintiir  were  liable  upon  their  bond 
for  the  defendant's  damages  in  the 
revived  suit.  '  ib. 


ACCOUNT  STATED. 

1.  The  defendant  having  pleaded  an 
account  stated, may  elect  to  rely,  up-|3 


on  the  trial,  upon  the  stating  of  the 
account,  or  he  may  fall  back  upon  the 
accounts,  and  show  that  there  is,  in 
fact,  a  balance  due  him.  Goings  v. 
Patten,  168 

2.  It  is  not  inconsistent  with   the  de- 
fence of  an  account  stated,  for  the  de- 
fendants to  furnish  a  copy  of  the  ac- 
count upon  which  they  meant  to  re- 
ly, in  the  event  of  their  failure  to 
prove  the  stating  of  an  account,     ib. 

3.  But  the  defendant  having  refused  to 
deliver  a  copy  of  the  account  within 
the  time  which  the  Code  allows  after 
demand  made, — Held,  that  he  will  be 
deemed  to  have  elected  to  rely  upon 
the  stating  of  the  account ;  and  on 
motion,  plaintiff  is  entitled  to  an  or- 
der precluding  defendant  from  giv- 
ing evidence  of  the  accounts  upon 
the  trial.  ib. 

See  BAKES,  3. 
ACTION. 

,  The  defendant  collected  a  sum  of 
money  tor  S.  with  directions  to  pay 
the  same  to  the  plaintiff, — Held,  that 
this  was  equivalent  to  an  express 
promise  by  the  defendant  to  the 
plaintiff,  to  pay  him  such  sum,  and 
an  action  for  money  had  and  re- 
ceived by  plaintiff  was  well  brought. 
Held,  further,  that  no  consideration 
between  plaintiff  and  S.  need  bo 
shown.  Berry  v.  Mayhcw,  54 

.  Under  such  circumstances,  it  is  no 
defence  that  another  party  claims 
the  same  sum,  but  the  money  should 
be  paid  into  court,  and  such  third 
party  brought  in  by  way  of  inter- 
pleader, ib. 

The  master  of  a  vessel  has  a  lieu 


592 


INDEX. 


upon  the  freight  and  earnings  of  the 
vessel  for  the  voyage,  for  advances 
and  personal  responsibilities  necessa- 
rily made  or  incurred  by  him  during 
the  voyage,  for  the  safety  of  the  ves- 
sel, and  the  successful  prosecution  of 
the  voyage ;  and  this  lien  is  assign- 
able. Sorley  v.  Brewer,  79 

4.  The  plaintiff  paid  an  assessment  im- 
posed on  his  property,  which,  by 
mistake  of  the  collector  of  assess- 
ments, was  credited  to  other  proper- 
ty not  ow"ned   by  him, — Held,  that 
plaintiff  could  not  recover  back  the 
money  as   being  paid  by  mistake. 
Purdue  v.  The  Mayor,  &c.,  121 

5.  The  plaintiff  having  paid  his  asess- 
ment,  the  same  is  satisfied,  no  matter 
what  entry  may  be  made  on  the  de- 
fendant's books;  and  the  plaintiff 
has  his  remedy  to  enjoin  the  de- 
fendants from  selling  the  property 
for  non-payment  of  the  assessment, 
or  he  may  compel  the  defendants  to 
remove  it  as  an  incuinbrance  or  lien. 

ib. 

6.  In  an  action  upon  an  undertaking 
given  under  section  356  of  the  Code, 
to  obtain  a  stay  of  execution,  after 
an  appeal  and  affirmance,  it  is  not 
proper  to  inquire  at  the  trial  wheth- 
er or  not  the  appeal  had  been  per- 
fected by  the  filing  of  the  undertak- 
ing prescribed  by  section  354  of  the 
Code.    Sperling  v.  Levy,  95 

7.  It  is  sufficient  that  the  undertaking 
sued  upon  is  in  pursuance  of  a.  stat- 
ute requirement,  that  it  was  in  the 
form  prescribed  thereby,  and  that  it 
was  given  in  a  case  contemplated  by 
the  statute.  ib. 

8.  It  is  sufficient  to  establish  the  plain- 
tiff's right  to  recover  in  such  an  ac- 
tion, to  prove  the  undertaking  enter- 
ed into  by  the  defendants,  the  rendi- 
tion of  the  judgment  therein  referred 
to,  and  the  sheriff's  return  of  the 
execution  issued  upon  the  judgment( 
unsatisfied.  ib\ 

9.  It  is  no  defence  that  the  execution 
issued  upon  the  judgment,  in  the  jus- 
tice's court  was  returned  before  the 
expiration  of  the  sixty  days.    The 

•  reason  which  may  have  induced  the 
sheriff  to  make  such  a  return,  or 
whether  it  was  made  upon  the  re- 
quest of  the  plaintiff  in  the  action  or 
not,  is  entirely  immaterial,  and  not 
the  subject  of  inquiry  in  such  an  ac 
tiou.  ib. 


10.  The  distinction  between  legal  and 
equitable  actions,  and  the  difference 
in  the  mode  of  conducting  them, — 
pointed  out.  Smith  v.  Lewis,  452 

See  ARBITRATION,  4,  5. 
COUNTERCLAIM,  2. 

ADMISSIONS. 

See  APPEAL,  1. 
EVIDENCE,  10. 

AGENT. 

See  ATTORNEY  &  CLIENT. 
BROKER. 
CARRIER,  11,  12. 
COMMISSIONER. 
PRINCIPAL  AND  AGENT. 
MASTER  AND  SERVANT. 
CONSIGNOR  AND  CONSIGNEE,  2,  8. 

AGREEMENT. 
See  CONTRACT. 
AMENDMENT. 

See  JUDGMENT,  2. 

MARINE  COURT,  3, 4. 
PRACTICE,  6,  7,  8, 

ANSWER 
See  PLEADINGS. 

APPEAL. 

.  Although,  at  the  trial,  evidence  of 
certain  admissions  of  defendant's 
agent  may  have  been  improperly  ad- 
mitted, yet  where  it  worked  no  in- 
jury to  the  defendant,  the  action  be- 
ing abundantly  sustained  without  it, 
— Held,  that,  on  appeal,  it  will  be  re- 
jected as  immaterial  matter,  and  the 
objection  and  exception  to  its  admis- 
sion may  be  disregarded.  Benedict 
v.  Ocean  Ins.  Co.,  9 

2.  Where,  on  an  appeal  from  a  judg- 
ment, by  the  defendant,  to  the  Gen- 
eral Term,  the  facts  were  agreed  on 
by  the  parties,  and  could    not  be 
varied  by  any  evidence  which  might 
be  adduced  on  a  new  trial,  and  a  re- 
versal was    had, — Held,    that    final 
judgment  for  defendants  should  be 
given  on  such  reversal.     Peterson  v. 
Walsh,  182 

3.  The  question  of  care  <md  vigilance 
is  one  of  fact  for  the  tribunal  which 


INDEX. 


593 


tries  the  case,  and  its  finding  wi 
not  ordinarily  be  disturbed  on  ap 
peal.  Morris  v.  TJdrd  Ace.  R.  R.  Co 

2ft 

4.  Where  the  review  and  reversal  of  i 
judgment  by  the  ultimate  appellat 
tribunal  was  a  nullity,  because  the 
appeal  was  not  taken  in  a  way  tha 
entitled  the  Court  to  hear  it,  but  for 
which  the  appellant  was  not  respon 
sible, — Held,  after  nine  years  of  ac 
quiescence  and  repose  by  the  party 
who  recovered  the  original  judg 
ment,  that  he  would  be  restrainec 
by  a  Court  of  Equity  from  enforcing 
it,  unless  he  consented  that  an  appea 
might  then  l>e  brought  with  the  same 
effect  as  if  it  had  been  brought  with- 
in the  time  prescribed  by  law.  Jacobs 
v.  Morange,  523 

5.  Where  a  Court  has  not  jurisdiction 
of  the  subject  matter,  the  consent  of 
parties  will  not  confer  it ;  but  a  con- 
sent that  an  appeal  may  be  brought 
after  the  time  has  elapsed  for  bring- 
ing it,  is  not  liable  to  that  objection. 
The  appellate  Court  having  the  gen- 
eral power  to  review  judgments  up- 
on appeal,  such  a  consent  does  not 
confer  it,  but  it  is  a  mere  waiver  of 
the  right  to  insist  that  the  time  has 
passed  for  bringing  the  appeal.       ib. 

6.  A  motion  cannot  be  entertained  at 
Special  Term  to  dismiss  an  appeal 
from  an  order  made  at  Special  Term. 
In  such  a  case  the  motion  to  dismiss 
the  appeal  must  be    made   at    the 
General  Term.     A  motion  to  dismiss 
an  appeal  from  the  Marine  or  Jus- 
tices' Courts  to  this  Court,  however, 
should  be  made  at  the  Special  Term. 
People  ex   rel.  Larocque  v.  Murphy 

402 

7.  An  order  granting  or    denying  a 
motion  to  open  an  inquest  cannot  be 
reviewed  on  appeal  by  the  General 
Term.     Parish  v.  Gerties,  274 

See  DtsTKicr  COUKTS. 
MAIUNE  COUKTS,  8, 11. 
PRACTICE,  3,  4. 


APPEARANCE. 


1.  The  appearance  of  an  attorney 
out  authority  is  a  nullity.  !>• 
Mather, 


with- 
<an  v. 
440 


2.  Where  one    partner,  without  the 
knowledge  or  authority  of  his  co- 
38 


partners,  indorsed  the  name  of  the 
firm  upon  a  promissory  note  made 
for  his  individual  benefit,  and,  being 
sued  upon  the  note;  he,  without  the 
knowledge  or  authority  of  the  other 
partners,  upon  whom  process  had 
not  been  served,  employed  an  attor- 
ney to  appear  not  only  for  himself 
but  for  them,  and  judgment  was  ren- 
dered against  all, — Held,  notwith- 
standing there  was  an  appearance  by 
attorney,  that  the  judgment  would 
be  set  aside,  under  such  circumstan- 
ces, against  the  other  partners,  and 
that  they  would  be  allowed  to  come 
in  and  defend.  Sean  v.  Mather,  440 

See  ATTORNEY  AND  CLIENT. 
ARBITRATION. 

.  Where  a  valid  contract  has  been  en- 
tered into  for  the  renewal  of  a  lease, 
by  which  it  is  provided  that  the 
amount  of  rent  to  be  paid  shall  be 
settled  by  arbitration,  and  either  par- 
ty refuses  to  appoint  an  arbitrator,  a 
court  of  equity  will  compel  a  specific 
performance,  and  order  a  reference 
to  ascertain  what  the  amount  of  rent 
should  be.  Kdto  v.  Kelly,  419 

.  A  lease,  executed  by  the  plaintiffs  to 
one  K.  for  a  term  of  five  years,  con- 
taining a  provision  that  the  lessee 
"  might  have  the  privilege  of  a  fur- 
ther lease  of  the  premises  for  five 
years,  the  rent  to  be  fixed  by  two 
persons,  chosen,"  &c.    Before  the  ex- 
piration of  the  lease,  the  lessee  died, 
and  the  defendant,  his  devisee  and 
the  sole  executrix  of  his  will,  entered 
and  continued  in  possession  of  the 
premises  until  after  the  expiration  of 
the  term  of  the  lease.  The  defendant 
and  an  agent  of  the  plaintiffs,  but 
without  the  plaintiffs'  authority,  ap- 
pointed a  person  each,  who  agreed 
upon  a  rent  to  be  paid  by  the  defen- 
dant for  the  renewed  term.     The 
plaintiffs  refused  to  ratify  the  act  of 
the  agent,  and  notified  the  defend- 
ant   that    they  wore  ready  to  pro- 
ceed by  arbitration,  as  provided  by 
the  lease.    The  defendant  reftoed  to 
appoint  an  arbitrator.    In  an  action 
to  have  the  alleged  arbitration  de- 
clared void,  and  to  have  the  rent  for 
the  renewed  term  fixed  under  the 
direction  of  the  Court,— Held,  on  a 
demurrer  to  the  complaint,  that  the 
action  was  maintainable.  *fr. 

The  continuing  in  pofw«wion  by  the 
defendant  after  the  expiration  of  the 


594 


INDEX. 


lease,  was  equivalent  to  an  election 
to  take  the  further  lease ;  aiid  by 
such  election  the  covenant  to  appoint 
arbitrators  became  binding  upon 
both  parties.  ib. 

4.  On  the  refusal  of  the  lessee,  there- 
fore, to  appoint  an  arbitrator,  as  the 
lessor  could  not  give  a  new  lease  un- 
til the  amount  of  the  rent  should  be 
fixed,  the  lessor  is  entitled  to  thej 
equitable  aid  of  the  court  to  ascertain 
it.  ib. 

5.  If  the  remedy  which  a  party  may 
have  at  law  will  not  put  him  in  a 
situation  as  beneficial  to  him  as  if 
the  agreement  were  specifically  per- 
formed, relief  will   be  afforded  in 
equity.  ib. 

ARREST. 


1.  It  is  not  a  ground  for  setting  aside 
an  order  of  arrest  that  the  party  hac 
been  arrested  previously  in  the  same 
suit,  and  on  the  same  process,  on  a 
day  of  general  election.  The  exemp- 
tion from  arrest  expires  with  the  day 
of  election,   and  the  parties  after- 
wards stand  towards  each  other  as  i; 
no  previous  arrest  had  been  made 
Petrie  v.  Fitzgerald,  401 

2.  The    defendant    having    attended 
Court  upon  the  order  of  a  judge 
thereof,  to  give  information  in  a  pro- 
ceeding instituted  by  him,  was  ar- 
rested whileleaving  the  Court  House. 
The  defendant  gave  bail,  and  his 
sureties  being  excepted  to,  gave  no- 
tice of  justification,  and  subsequently 
moved   for   his   discharge,  on   the 
ground  that  he  was  privileged  from 
arrest  as  a  suitor  or  witness, — Held, 
that  although  the    defendant    was 
privileged  from  arrest  at  the  time  of 
his  seizure,  yet  having  given  bail, 
and  notice  of  justification  of  his  sure- 
ties, he  waived  his  privilege,  and 
could  not  urge  it  on  a  motion  to  be 
discharged  on  the  ground  of  his  ex- 
emption, ib. 

3.  The  exemption  of  a  party  or  witness 
from  arrest  is  a  personal  privilege 
which  can  be  waived  ;  and  the  wai 
ver  is  complete  when  the  party  or 
witness  fails  to  claim  it  at  once,  and 
does  some  act  in  the  cause  in  refer- 
ence to  his  appearance.  ib. 

See  DURESS,  2,  3, 4. 


ASSIGNMENT  FOR  THE  BENE- 
FIT  OF   CREDITORS. 

1.  A  direction  to  the  assignee  in  an  as- 
signment for  the  benefit  of  creditors, 
to  pay  first  all  the  just  and  reasona- 
ble expenses,  costs,  and  charges,  and 
commissions  of  executing  and  carry- 
ing into  effect  the  assignment,  "  and 
all  reasonable  and  proper  charges  for 
attorney  and  counsel  fees  respecting 
the  same," — does  not  render  the  as- 
signment void.    Butt  v.  Peck,        83 

2.  The  assignment    directed    the    as-' 
signee  to  pay  all  debts  due  or  to 
grow  due,  referred  to  hi  Schedule  A. 
The  schedule  contains  the  names  of 
two  creditors  with  words,  "  amount 
due  him  for  services,"  annexed,  but 
omitted  to  state  the  amounts  due  to 
them, — Held,  that    the  omission  to 
specify  the  amount  of  the  debts  in 
the  schedule,  did  not  avoid  the  as- 
signment, ib. 


3.  The  words,  "  debts  to  grow  due,"  al- 
thqugh  objectionable,  may  be  under- 
derstood  to  mean  claims  which  have 
not  matured,  but  which  are  cap- 
able of  being  readily  understood,  ib. 

See  COUNTERCLAIM,  5,  6,  7. 


ATTACHMENT. 
See  CONTEMPT,  1. 

ATTORNEY  AND    CLIENT. 

.  An  attorney  cannot  serve,  profes- 
sionally, both  parties  to  a  contro- 
versy, and  where  he  has  been  retain- 
ed by  one,  he  cannot  recover  for  pro- 
fessional services  rendered  in  the 
same  matter  to  the  other.  Herrick 
v.  Catky,  512 

See  APPEARANCE,  1. 


B 


BANKS. 

I.  The  owner  of  a  bank  bill  acciden- 
tally tore  it  into  two  nearly  equal 
parts,  one  of  which,  containing  no 
words  giving  it  a  negotiable  charac- 
ter, was  lost.  The  bank,  on  demand 
being  made  upon  it  for  the  amount 


INDEX. 


595 


of  the  mutilated  bill,  refused  pay- 
ment until  indemnified  by  the  owner 
against  the  loss  which  would  ensue 
to  it  from  the  refusal  of  the  Bank 
Department  to  issue  a  new  bill,  or  to 
re-transfer  so  much  of  its  security 
pledged  for  the  redemption  of  its  cir- 
culation,—.HeW,  that  the  bank  was 
liable  for  the  amount  of  the  note. 
1.  The  embarrassment  of  the  bank  in 
enabling  it  to  procure  another  bill,  or 
re-transfer  of  an  equal  amount  of  its 
securities,  does  not  furnish  any  de- 
fence to  such  an  action.  2.  This 
was  not  a  case  of  a  lost  note,  and  the 
provisions  of  2  Revised  Statutes,  406, 
§§  75,  76,  requiring  a  bond  of  indem- 
nity to  be  given  by  a  party  seeking 
to  recover  on  lost  notes,  etc.,  have  no 
application.  3.  This  was  clearly 
such  a  mutilated  note  as  is  contem- 
plated by  the  act  of  1840,  ch.  363, 
§  5,  which  it  would  be  the  duty  of 
the  Superintendent  of  the  Bank  De- 
partment to  receive  and  deliver  in 
lieu  thereof  to  the  bank  another  note 
of  the  same  amount.  Martin  v.  Bly- 
denburgh,  314 

2.  Where  a  Bank  was  notified  by  the 
drawer  of  a  check  not  to  pay  it,  and 
the  paying-teller  promised  not  to  do 
so,  but  afterwards  paid  it  to  the  hol- 
der on  presentation, — Held,  that  the 
drawer  might  recover  from  the  Bank 
the  amount  of  the  check  so  paid. 
Schneider  v.  The  Irving  Bank,       500  3 

3.  Entries  in  a  depositor's  bank-book 
do  not  constitute  an  account  stated 
between  the  depositor  and  the  Bank, 
where  the  former,  within  a  reasona- 
ble time  after  the  book  is  balanced, 
makes  objections  thereto.  ib. 


BAILMENT 

1.  Where  property  is  not  put  in  a  bai- 
lee's charge  by  the  owner,  but  comes 
into  his  possession  through  the  own- 
er's neglect,  and  where  he  may  not 
know  to  w4iom  it  belongs,  or  by 
whom  it  was  left,  he  should  not  be 
held  responsible  for  delivering  it  to 
the  wrong  person,  if  he  has  exercised 
all  the  care  and  vigilance  that  could 
reasonably  be  expected  of  him  under 
the  circumstances.  Morris  v.  Third 
Avenue  It.  R.  Co.,  202 

flee  CARRIER. 

CONVERSION,  2,  8. 
WAREHOUSEMEN. 


BILLS    AXD    NOTES. 


.  One  who  indorses  a  forged  check, 
warrants  the  genuineness  of  the 
check,  and  that  of  every  prior  in- 
dorser, but  to  the  extent  only  of  bind- 
ing himself  as  indorser,  and  if  the 
proper  steps  have  not  been  taken  to 
charge  him  as  indorser,  he  is  not  lia- 
ble to  a  subsequent  holder  who  has 
given  full  value  for  the  check.  Case 
v.  Bradburn,  256 

.  The  defendant  received  a  forged 
check  in  the  course  of  business  in 
payment  of  a  debt,  which  he  placed 
in  his  bank  for  collection,  and  which 
he  indorsed,  in  compliance  with  the 
rules  of  the  bank.  Upon  the  presen- 
tation of  the  check  to  the  bank  upon 
which  it  was  drawn,  payment  was 
refused,  and  upon  its  being  delivered 
to  the  defendant's  servant,  he  return- 
ed it  to  the  person  from  whom  the 
defendant  had  received  it,  with  the 
defendant's  indorsement  upon  it,  and 
by  that  person  it  was  passed  to  the 
plaintiff  for  its  full  value, — Held,  as 
the  defendant  was  ignorant  of  the 
alleged  forgery,  and  "as  the  money 
obtained  upon  it  upon  the  faith  of 
his  indorsement  was  not  received  by 
him,  and  as  no  step  had  been  taken 
to  charge  him  as  indorser,  that  he 
was  not  liable.  ib. 

,  Where  all  that  appears  is  that  a 
preditor,  after  a  note  becomes  due, 
takes  from  the  maker  a  new  note,  a 
bill  or  a  check,  for  the  amount  of  it, 
payable  at  a  future  day,  the  conclu- 
sion must  be  that  the  parties  have 
agreed  to  extend  the  time  of  credit 
upon  the  original  note,  until  the  sup- 
plctory  instrument  becomes  payable ; 
and  if  such  an  agreement  is  founded 
upon  sufficient  consideration,  it  is 
binding,  and  the  indorsers  of  the 
original  note  are  discharged  from 
liability  thereon.  Place  v.  Mcllmrin. 

888 

.  The  maker  of  a  note,  past  due,  in- 
closed, in  a  letter  to  the  holders  of 
it,  a  check  for  the  amount,  dated  at 
a  future  day,  and  requested  them  to 
keep  the  check  until  its  maturity, 
when  he  would  call  for  the  note. 
The  holders  made  no  reply,  but  kept 
the  check,  and  depOflHed.lt  in  bnnk 
at  maturity,  "  with  the  expectation 
that  it  would  be  paid,"—  HeM,  that 
from  such  a  state  of  facts,  it  must  bo 
concluded  that  the  holders  acceded 
to  the  request  of  the  maker,  aiul  uu 


596 


INDEX. 


agreement  to  give  time  will  be  im- 
plied as  a  matter  of  law.  ib. 

5.  Held,  therefore,  in  an  action  against 
the    indorsers    of  the  note,  that  a 
charge  to  the   jury  that  it  was  foi 
them  to  determine  as  to  the  intent 
which  controlled  the  holders  in  ac- 
cepting the  maker's  check,  was  er- 
roneous, and  that  the  request  of  the 
defendant's   counsel    to  charge  the 
jury  Vo  find  for  the  defendant  upon 
the  ground  that  the  taking  of  the 
check,  although  without  any  express 
promise  to  wait,  was  a  suspension 
of  the  plaintiff's  right  to  recover  on 
the  note,  and  was  a  discharge  of  the 
indorsers,  was  improperly  refused, 
and  a  new  trial  should  be  granted,  ib. 

6.  Interest  on  a  promissory  note,  pay- 
able on  demand,  is  allowed  from  the 
time  of  the  demand,  and  not  from 
the  date  of  the  note.    Bishop  v.  Snif- 
fen,  155 

7.  Where  it  does  not  appear  that  at  the 
time  of  the  demand  of  payment  of  a 
lost  promissory  note,  negotiable  in 
fdrm,  the  same  was  not  indorsed, — 
Held,  that  the  demand,  unaccompa- 
nied by  an  offer  of  a  bond  of  indem- 
nity, did  not  place  the  maker  in  de- 
fault ;   and  interest  ought  not  to  be 
allowed  from  the  time  of  such  de- 
mand. «'/. 

8.  That  a  demand  of  payment  of  a  lost 
promissory  note  will  be  held  suffi- 
cient, without  an  offer  of  a  bond  of 
indemnity,  where  it  appears  either 
that  the  note  was  not  negotiable,  or 
being  negotiable,  had  not,  in  fact, 
been  indorsed.  ib. 

9.  A  written  agreement  to  pav  money 
provided  the  payee  shall  <3o  a  cer- 
tain thing,  is  not  negotiable  paper, 
and  is  subject,  in  the  hands  of  a  third 
person,  to  all  defences  valid  against 
it  in  the  hands  of  the  original  payee. 
James  v.  Hagar,  517 

See  BANKS. 

COUNTERCLAIM,  3,  4. 

BILLS  OF  LADING. 

See  CONSIGNOR  AND  CONSIGNEE,  1,6, 7, 8. 
SHIPPING. 

BROKER. 

1.  A  broker  who  receives  money  with 
specific  instructions  to  purchase  with 


it  certain  stock,  and  neglects  to  do  so, 
but  uses  it  for  some  other  purpose, 
and  not  for  the  benefit  of  his  princi- 
pal, is  liable  to  arrest  under  section 
179  of  the  Code.  Dubois  v.  Thomp- 
son. 309 

,  The  mere  fact  that  the  principal  has 
accepted  as  security  certain  bonds 
for  the  amount  of  his  deposit  with 
the  broker,  does  not  change  the 
character  of  the  latter's  liability,  ib. 

See  COMMISSIONS. 

PRINCIPAL  AND  AOENT. 


c 


CARRIERS. 

1.  The  plaintiff,  having  taken  passage 
on  defendant's  steamboat,  deposited 
his  valise,  containg  wearing  apparel, 
in  a  stateroom,  the  key  of  which  was 
handed  to  him  at  the  time  of  paying 
his  passage.    During  his  temporary 
absence  from  the  stateroom,  the  door 
of  which  was  locked,  the  valise  was 
stolen, — Held,    that    the    defendants 
were  liable.     Mudgett  v.  Bay  State 
Steamboat  Co.,  151 

0 

2.  The  liability  of  a  common  carrier  is 
like  that  of  an  innkeeper,  and  it  is 
no  excuse  for  the  latter  to  say  that 
he  delivered  the  guest  the  key*of  the 
chamber  in  which  he  lodged.          ib. 

.  A  mere  supervision  of  one's  bag- 
gage, or  the  means  of  entering  the 
place  of  its  deposit,  is  not  suffi- 
cient to  discharge  the  carrier.  There 
must  either  exist  the  animo  custodi- 
endi  on  the  part  of  the  traveller  to 
the  exclusion  of  the  carrier,  or  he 
must  be  guilty  of  such  negligence  as 
discharges  the  latter  from  his  general 
obligation.  ib. 

.  A  voyage  from  one  seaport  to  another 
is  not  completed  at  the  quarantine 
of  the  port  of  destination  ;  and  unless 
excused  by  special  agreement,  or  by 
the  health  laws  preventing  inter- 
course with  the  city,  the  vessel  is 
bound  to  carry  a  passenger  and  his 
baggage  to  the  point  agreed  on. 
Gilhooly  v.  N.  T.  and  Savannah 
Steam  Nav.  Co.,  197 

.  The  defendants  engaged  to  carry 
the  plaintiff  and  his  b;i<rgage  from 
Savannah  to  New  York  city.  The 


ITOEX. 


597 


plaintiff  being  ill,  left  the  vessel  at 
the  quarantine  of  the  latter  city, 
leaving  his  baggage  on  board  the 
vessel,  which  reached  the  city, — Held, 
that  in  the  absence  of  any  offer  on 
the  defendants'  part  to  deliver  the 
baggage  at  the  quarantine,  they  were 
bound  to  deliver  it  at  the  end  of  the 
journey,  when  called  for.  ib. 

6.  The  delay  of  the  owner  to  call  for 
the  baggage  for  several  days  after 
its  arrival  at  the  point  of  destination 
does  not  release  the  carrier  from  his 
obligation  to  deliver  it  to  him  on 
demand.  ib. 

7.  The  demand  must  be  made,  how- 
ever, within  a  reasonable  time,  and 
what  is  a  reasonable  time,  is,  hi  all 
cases,  a  question  of  fact,  and  the  find- 
ing of  the  jury  on  that  question  will 
not  be  disturbed.  ib. 

8.  Where  carriers  of  passengers,  by  a 
general  regulation,  make  it  the  duty 
of  their  agents  to  take  charge  of  pro- 
perty inadvertently  left  in  their  cars, 
and  provide  at  their  depot  a  place 
for  its  safe  keeping,  where  the  owner 
may  apply  for  it,  it  must  be  deemed 
a  part  of  their  business  to  take  charge 
of  such  articles  and  keep  them  for 
the  passenger.    Morris  t.  Third  Av. 
R.  R.  Co.,  203 

9.  And  although  they  do  not  engage 
for  the  carriage  of  luggage,  and  do 
not  incur  respecting  it  the  extraor- 

.dinary  liability  of  common  carriers, 
yet  the  existence  of  the  regulation 
shows  that  they  undertake,  as  inci- 
dental to  their  business,  to  take 
charge  of  it,  if  left  in  their  care, 
when  the  fact  is  brought  to  their 
knowledge ;  and  the  specific  com- 
pensation which  they  receive  for  the 
carriage  of  the  passenger  is  sufficient 
to  constitute  them  bailees  for  hire, 
while  the  property  remains  in  their 
custody.  ib 

10.  The  plaintiff  left  a  satchel  in  defen- 
dants' car,  which  the  conductor  took 
charge  of,  and  upon  the  return-trip 
placed  it  in  the,  care  of  the   receiver 
of  the  road,  by  whom  it  was  de 
livered  to  a  person  who  had  no  right 
or  claim  to  it, — Held,  that  the  defen- 
dants were  liable  as  for  a  conversion. 

ib. 

11.  The  plaintiffs  bought  goods  of  E. 
and  gave  directions  to  ship  them  by 


the  defendant,  an  Express  Company, 
— Held,  that  under  such  directions, 
E.  had  authority,  so  far  at  least  ad 
defendants  were  concerned,  to  make 
a  contract  limiting  the  defendants' 
liability.  Moriarty  v.  Harnden's  Ex- 
press, 227 

12.  A  carrier  receiving  goods  for  car- 
riage will  not  be  required  to  examine 
the  authority  of  the  person  present- 
ing them  to  make  a  contract  limiting 
his  responsibility.  ib. 

13.  That  the  right  of  a  common  car- 
rier to  limit  his  liability  is  no  longer 
subject  to  discussion.  ib. 

14.  The  defendants,  who  are  common 
carriers,  running  connecting  lines  of 
railway  from  Buffalo  to  Milwaukee, 
throuiih  their  mutual  agent  in  the 
city  of  New  York,  took  fiom  the 
plaintiffs  the  receipt  of  the  Hudson 
River  Railroad  Company,  for  certain 
goods  marked,  "  Janesville,  Wis.,  via 
M.  D.  R  R.,"  and  gave  therefor  a 
bill  of  lading,  whereby  it  was  agreed 
that  the  defendants  would  transport 
said  goods  over  their  lines  to  Mil- 
waukee.   At  Buffalo,  the  goods,  in- 
stead of  being  delivered  to    or  re- 
ceived by  the  defendants,  were  de- 
livered on  board  a  propeller,  to  be 
carried  thence  by  lake  to  Milwaukee. 
The  propeller  and  her  cargo  were 
lost  on  her  passage, — Ileld,   in    an 
action  against  the  defendants  to  re- 
cover damages  for  the  loss,  that  as 
the  receipt  of  the  Hudson  Railroad 
for  the  goods  was  given  to  the  mutual 
agent  of  the  defendants,  and  as  the 
holder  of  that  receipt  was  entitled  to 
the  custody  of  the  goods  upon  their 
arrival  at  Buffalo,  it  was  incumbent 
upon  the  defendants  to  explain  how- 
it  was  that  the  goods  were  forwarded 
from  Buffalo  by  a  different  route  than 
theirs,   and   that  it  occurred  under 
circumstances     exonerating     them 
from     responsibility.      Le   Saye    v. 
Great  Western  R.  Co.,  800 

15.  To  charge  a  common  carrier  there 
must  either  be  a  special  acceptance 
of  the  property  or  a  delivery  accord- 
ing  to  the  established  u«age  in  tlie 
carrier's  business;  and  where  by  the 
usage?  there  is  a  person  appointed  to 
receive  and  take  charge  of  a  particu- 
lar  kind   of  property,  the  delivery 
must  be  to  him,  and   not  to  one  ?n- 
ga^ed  in  the  di.Hcharire  of  other  du- 
ties.    Ball  v.  X.  J.  St&tn&Mt  Co-.,  4'Jl 


598 


INDEX. 


16.  Where  carrier  has  au  agent  on  his 
boat  to  receive  and  take  charge  of 
baggage  and  to  check  it,  it  is  not  a 
good  delivery  to  leave  it  upon  the 
boat  without"  obtaining  a  check,  or 
calling  the  agent's  attention  to  it. 

17.  A   cartman    took    the    plaintiff' 
trunk  to  the  defendants'  wharf,  and 
was   there  directed  by   a   baggage 
master  having  charge  of  a  different 
class  of  goods  to  take  it.  on  board  the 
boat.     The  carlman  deposited   the 
trunk  with  other  trunks  at  the  bag- 
gage-rooin  door,  without  obtaining  a 
check  for  it  or  calling  to  it  the  atten- 
tion of  the  baggage  master  having 
charge  of  that  class  of  baggage, — 
Held,  that  this  was  not  such  a  deliv- 
ery to  or  acceptance  by  the  defen- 
dants as  to  make  them  liable  for  the 
loss  of  the  trunk.  ib. 

See  TELEGRAPH  COMPANIES. 
CHATTEL    MORTGAGE. 

1.  An  error  of  the  Register  in  improp- 
erly indorsing   a  chattel  mortgage, 
whereby  a  subsequent  purchaser  is 
misled,  does  not  invalidate  the  mort- 
gage ;  the  making  of  such  indorse- 
ment is  the  duty  of  the  Register,  and 
its  omission  is  not  the  fault  of  the 
mortgagee,  and  cannot    affect    his 
rights.    Dikeman  v.  Puckhafer,    489 

2.  It  seems  that  the  remedy  of  a  pur- 
chaser who  has  been  misled  as  to  the 
existence  of  a  chattel  mortgage,  by 
reason  of  an  omission  or  defect  in 
the  indorsement  or  filing  of  the  mort- 
gage, is  against  the  officer  making 
such  error.  ib. 

COMMISSIONS. 

1.  Where  a  factor,  agent,  or  broker, 
misconducts  himself  in  the  business 
of  his  agency,  so  that  his  services 
have  not,  by  reason  of  his  miscon- 
duct, negligence,  or  fraud,  been  of 
any  benefit  to  his  principal,  or  have 
not  proved  as  beneficial  as  they  oth- 
erwise would,  but  for  his  miscon- 
duct, he  forfeits  his  right  to  commis- 
sion.   Boston  Carpet  Co.  v.  Journeay, 

190 

2.  But  where  a  commission  merchant, 
in  rendering  accounts  of  his  sales  re- 
turned certain  sales    as  made  at  a 
lower    rate    than  appeared  on  his 
books, — Held,  that  although  the  prin- 


cipal might  recover  the  difference 
between  the  amount  of  the  sales  'ac- 
tually made,  and  those  returned,  yet, 
no  fraud  being  proved,  he  could  not 
recover  the  commissions  already 
paid  and  allowed  to  the  merchant 
for  services  actually  performed  in 
and  about  the  business.  ib. 

COMMON    COUNCIL. 
See  NEW  YORK  CITY. 
COMPLAINT. 
See  PLEADING. 
CONSIDERATION. 

See  CONTRACTS,  3. 
EVIDENCE,  11, 12. 

CONSIGNOR   AND    CONSIGNEE. 

1.  The  fact  that  the  consignee's  busi- 
ness address  was  stated  in  the  bill 
of  lading  does  not  oblige  the  shipper 
to  depart  from  his  known  and  usual 
place  of  delivery,  and  deliver  the 
cargo  at  a  pier  more  contiguous  to 
the  consignee's    place    of   business. 
Western  Transportation  Co.  v.  Hawley, 

327 

2.  Very  slight  evidence  that  a  person, 
assuming  to  act  as  the  defendant's 
agent,  was  in  fact  his  agent,  should 
suffice  to  allow  the  question  to  go  to 
the  jury  ;  as  the  defendant  has  it  in 
his  power,  now  that  parties  may  be 
witnesses  in  their  cwn  case,  to  show 
at  once  if  the  fact  were  otherwise, 
and  that  the  acts  of  the   agent  were 
without  his  knowledge  or  authority. 

ib. 

3.  The  facts  that  the  defendant,  the 
consignee,  was  notified  that  if  the 
cargo  was  discharged  elsewhere  than 
at  the  pier  where    the  vessel  lay, 
lighterage  would  be  charged ;  and 
that  afterwards  a  written  request  to 
send  the  vessel  to  another  pier  came 
in  his  name,  signed  by  the  person 
who  had  acted  as  his  agent  in  ship- 
ping the  cargo,  who  had  been  seen 
in  and  about  his  office,  and  who  as- 
sumed in  such  request  to  act  as  his 
agent,  upon  which  request  the  cargo 
was  so  delivered, — Held,  sufficient  to 
warrant  a  finding  on  the  part  of  the 
jury  that  it  was  by  the  defendant's 
request  that  the  vessel  was  moved 
and  the  cargo  was  delivered  at  an- 
other pier.  t&. 


ESDEX. 


599 


4.  Held  further,  that  the  sending  of  such 
a  request  by  the  defendant,  after  no- 
tification that  a  charge  in  such  case 
would  be  made  for  lighterage,  would 
be  sufficient  to  support  an  implied 
a-ssumpsit  that  the  defendant  would 
pay  what  was  customary,  if  any  cus- 
tom existed,  or,  if  no  custom  existed, 
a  reasonable  compensation.  ib. 

5.  EM  further,    that    the  plaintiff's 
claim  upon  such  an  implied  agree- 
ment would  not  be  limited  to  the 
amount  actually  paid  out  by  them 
for  towing  the  vessel  from  one  pier 
to  another,  but  they  would  be  enti- 
tled to  such  an  amount  of  extra  com- 
pensation as  the  jury  might  fix.     ib. 

6.  The  right  of  a  shipper  to  revoke  a 
consignment  after  the  shipment  has 
been  made,  and  a  bill  of  lading  signed, 
by  which  the  goods  are  deliverable 
to  a  consignee  by  name,  but  before 
the  bill  of  lading  is  delivered  to  the 
consignee,    cannot    be    questioned 
either    on    principle    or    authority. 
Hauterman  v.  Bock,  366 

7.  Until   the  bill  of  lading  is  parted 
with,  no  title  to  the  property  passes 
from  the  owner  or  shipper,  nor  does 
any  right  to  the  possession  or  owner- 
ship of  the  goods  vest  in  the  con- 
signee, ib. 

8.  The  production  of  the  bills  of  lad- 
ing by  plaintiffs,  the  possession  of 
which  they  had  never  parted  with, 
proves  conclusively  that  they  were 
the  shippers  and  owners.    The  bill 
is  regarded  as  a  muniment  of  title  to 
the  property  described  in  it.  ib. 

9.  Goods  in  public  store  awaiting  the 
completion   of    their    entry  at  the 
Custom  House  by  the  payment  of 
the  duties,  are  to  be  deemed  still  in 
transitu.  ib. 


CONTEMPT. 

1.  Where  an  attachment  was  issued 
•gainst  a  party  as  for  a  contempt 
granted  on  an  affidavit  verified  be- 
fore a  notary  in  a  county  other  than 
that  for  which  he  was  appointed,  — 
Held,  that  such  attachment  was  issu- 
ed without  due  proof  by  affidavit  as 
required  by  statute,  and  that  the  at- 
tachment order  granted  thereon,  and 
all  proceedings  thereunder,  should 
be  vacated  and  set  aside,  as  granted 
without  authority.  And  this,  not- 
withstanding sufficient  may  have  ap- 


peared in  the  party's  answers  to  the 
interrogatories  subsequently  filed 
without  resorting  to  the  affidavits 
upon  which  the  attachment  was 
granted,  the  proceeding  having  been 
void  from  its  inception.  People  ex 
rel.  Lar&cque  v.  Murphy,  463 

2.  On  a  motion  to  commit  a  party  for 
contempt,  he  should  be  permitted  to 
read,  in  addition  to  his  answers  to 
the  interrogatories    propounded  to 
him,  affidavits  showing  the  absence 
of  any  wilful  disobedience  of  the  or- 
der for  the  violation  of  which  it  is 
Bought  to  punish  him.  ib. 

3.  Where    a    statute     regulating    the 
course  of  procedure  for  a  criminal 
contempt,  says  that  the  court  "  may" 
receive  affidavits,  the  exercise  of  a 
sound  legal  discretion  requires  that 
affidavits  should  not  be  excluded, 
unless  they  are  manifestly  irrelevant 
t*  the  question.   (CARDDZO,  J.)     »ft. 

4.  The  proper  remedy  for  a  party  com- 
mitted for  a  contempt  under  a  void 
process,  is  to  move  the  Court  upon 
affidavits  disclosing  the  fact,  for  an 
order  vacating  it,  and  discharging 
the  party.    And  where  the  judge 
who  issued  such  process  is  no  longer 
a  member  of  the  Court,  the  motion 
may  be  made  before  any  judge  sit- 
ting at  Special  Term.  ib. 

CONTRACT. 

1.  Where  a  party  desires  to  abandon 
or  rescind  a  contract  because  of  some 
alleged  breach,  the  law  requires  him 
to  act  with  due  promptness  in  mak- 
ing his  election,  and  he  will  not,  as  a 
general  rule,  be  permitted  to  dp  so, 
when  at  the  time  of  the  decision 
both  parties  cannot  be  placed  in  the 
identical  situation,  nor  can  stand  up- 
on the  same  terms  existing   at  the 
time  the  contract  was  made.  Huntv. 
Singer,  209 

2.  Thus,   where  the  defendants,  who 
sought  to  avoid  a  contract  on  the 
ground  of  fraud,  knew  of  the  exist- 
ence of  the  fact  of  which  the  fraud 
was  alleged,    and    notwithstanding 
such  knowledge,  proceeded  to  com- 
plete their  part  of  the  contract,   by 
which   they   reaped   substantial  ad- 
vantages, e.  g.,  in   preventing  oppo- 
sition to  thn  extension   of  n  patent 
right, — IIM,  that  they  would  not  bo 
allowed  to  rescind  or  annul  the  con- 


600 


INDEX. 


tract  on  the  ground  of  the  alleged 
fraud.  *6. 

3.  The  defendant  agreed  to  take  a  loan 
which  had  been  negotiated  by  the 
plaintiffs  for  one  Schoonmaker,  and 
to  pay  the  expenses  incurred  by  the 
plaintiffs  in  searching    the  title  to 
the  premises  on  which  the  loan  was 
to  be  made,  and  also  to  pay  for  ser- 
vices rendered  by  the  plaintiffs, — 
Held,  that  the    agreement  was  not 
void  as  being  collateral  and  without 
consideration.    Benedict  v.  Dunning, 

241 

4.  A  material  alteration  of  a  written 
contract  by  one  of  the  parties  to  it, 
without  the  knowledge  or  consent  of 
the  other,  not  only  discharges  the 
latter  from  all  liability  upon  it,  but 
if  fraudulently  made,  will  release  him 
also  from  all  liability  upon  the  con-jl 
sideration  for  which   it  was  made. 
Trow  v.  Glen  Cove  Starch  Co.,       280 

5.  "Where  the  alteration  was  made  un- 
der a  mistaken  sense  of  right,  or  by 
a  stranger,  without  the  knowledge 
of  the  party  interested,  the  latter  will 
not  be  precluded   from  recovering 
upon    the    original     consideration. 
But,  in  such  a  case,  it  is  incumbent 
upon  the  interested  party  to  absolve 
himself  from  all  suspicion  of   any 
privity  or  knowledge  of  the  fraudu- 
lent act.  ih. 

6.  The    plaintiff's   agent  procured  a 
written  contract  or  order  from  the 
defendants  for  the  insertion  of  the 
defendants'    advertisement     in    the 
plaintiff's  Commercial  Register,  at  a 
certain  fixed  sum  named    therein. 
The  plaintiff  having  refused  to  ac- 
cept the  order  at  the  sum  named 
therein,  the  agent  fraudulently  and 
without  the  knowledge  of  the  de- 
fendants, altered  the  sum  named  to 
a  larger  sum,  and,  as  thus  altered, 
the  plaintiff  accepted  the  order  and  3 
inserted  the  advertisement.     In  an 
action  for  work,  labor,  etc.,  to  recov- 
er the  price  first  named  in  the  con- 
tract,— Held,    that    it    must  appear 
affirmatively     on     the     trial     that 
such  fraudulent  alteration  was  not 
made  with  the  knowledge  or  consent 
of  the  plaintiff,  and,  having  failed  to 
establish  that  fact,  the  complaint  was 
properly  dismissed.  ib. 

7.  A   clause   in    an  agreement  is  to 
be  construed  most  strictly  against 


the  party  for  whose  benefit  it  is  in 
serted.  Stuart  \.  T/ie  Columbian  Fire 
2ns.  Co.,  471 

.  Hence,  when  an  open  policy  con- 
tained a  clause  limiting  the  insurer's 
liability  to  the  decifiency  arising  on 
the  payment  of  any  other  policy  of 
prior  date, — Held,  that  the  limitation 
did  not  apply  to  goods  in  another 
policy,  intermediate  the  date  of  the 
defendant's  policy  and  their  inscrip- 
tion thereon.  16. 

See  ACTION,  1. 

ARBITRATION,  1,  2,  3,  4. 
EVIDENCE,  8,  9, 11. 
INSOLVENT,  3. 
INSURANCE. 

CONVERSION. 

Where  property  is  given  in  exchange 
for  notes,  void  in  their  inception  fbr 
usury,  the  property  so  given  in  ex- 
change may  be  recovered  and  the  ex- 
change rescinded,  on  the  discovery  of 
the  nature  of  the  notes;  and  an  action 
will  lie  for  theconveision  of  the  prop- 
erty, notwithstanding  the  person  giv- 
ing the  notes  acted  in  good  faith  and 
without  knowledge  of  their  charac- 
ter. Loeschigh  v.  Blun,  49 

.  The  plaintiffs  transferred  the  bill  of 
lading  of  one  hundred  barrels  of 
flour  to  the  defendant,  who  was  the 
assignee  for  the  benefit  of  the  credit- 
ors of  M.  &  Co.,  to  whom  the  plain- 
tiffs had  given  their  promissory  note, 
which  ML  &  Co.  had  indorsed  to  a 
third  party.  When  the  transfer  of 
the  bill  of  lading  was  made,  the  de- 
'fendaut  gave  a  receipt,  by  which  it 
was  stipulated  that  the  flour  was  to 
be  used  as  security  for  the  plaintiffs' 
note,  and  that  the  sale  of  it  was  to 
be  under  the  plaintiffs'  direction. 
Jaroslauski  v.  Saunderson,  232 

When  the  note  became  due,  no  de- 
mand for  its  payment  was  made  by 
the  holder,  and  the  defendant,  hav- 
ing no  notice  of  any  intention  to  sell 
the  flour,  sold  it,  without  notice  to 
the  plaintiffs, — Held,  that  this  was  a 
pledge,  and  the  defendant  had  no 
right  to  sell  the  flour  until  payment 
of  the  note  was  demanded,  and  after 
reasonable  notice  to  the  plaintiffs  of. 
the  intended  sale.  Held  further,  that 
the  plaintiffs,  after  offering  to  pay 
the  note  and  expenses,  and  after  de- 
mand of  the  flour,  might  maintain 


INDEX. 


601 


an  action  against  the  defendant  fo 
its  conversion. 

4.  Actions  to  recover  compensation  fo 
injuries  done  to  personal  proper t 
may  be  maintained  wherever  juris 
diction  of  the  parties  can  be  ob 
tained.  In  such  cases  the  venue  i 
transitory.  Smith  v.  Butter,  50) 

See  CAKRIEBS,  10. 
CONVEYANCE. 

See  LANDLORD  AND  TENANT,  1,  3,  4. 
CORPORATION  OP  NEW  YORK 

See  NEW  YORK  CITY. 

CORPORATION  ORDINANCES. 

See  NEW  YORK  CITY. 

COSTS. 

1.  Where,  in  an  action  to  enforce  a  me- 
chanic's lien  against  several  defend- 
ants who  appeared  by  the  same  at- 
torney, the  complaint  was  dismissed 
on  motion,  on  the  ground  that  it  did 
not  contain  facts  sufficient  to  consti- 
tute a  cause  of  action,  without  any 
trial  of  the  issues  raised  by  the  an- 
swers, and  it  did  not  appear  that 
their  defences  were  such  as  could  not 
have  been  joined, — Held,  that  sepa- 
rate bills  of  costs  should  not  be  al- 
lowed to  these  defendants.    Bailey 
v.  Johnson,  61 

2.  Where  the   complaint   presents  a 
prima  facie  case  of  jurisdiction,  and 
the  question  is  not  raised  by  the  is- 
sues, but  the  plaintiff,  on  the  trial, 
admits    the  fact  which  shows  the 


COUNTERCLAIM. 


want  of  jurisdiction,  his  non-resi- 
dence, and  the  complairt  is  dis- 
missed on  that  ground,— -Held,  such 
an  adjudication  of  the  action  as  will 
entitle  the  defendant  to  a  judgment 
for  costs.  Harriott  v.  N.  J.  R.  It.  d- 
T.  Co.,  37- 

8.  The  rule  that  costs  will  not  be  al- 
lowed on  the  dismissal  of  a  com- 
plaint for  want  of  jurisdiction,  ap- 
plies only  in  cases  where  the  want 
of  jurisdiction  appears  on  the  face  of 
the  summons  or  complaint,  or  the 
Court  is  called  upon  to  adjudicate 
the  question  on  plea  or  demurrer,  ib. 

See  DOMICIL,  8. 


1.  The   vendor   gave  a  deed  with  a 
-warranty  of  title,  and  a  convenant 
that  the  land  was  free  from  incum- 
brances,  except  an  outstanding  lease 
which    had    two   years   and  seven 
months  to  run.    The  vendee  gave  in 
part   payment,   his    note,    with  'an 
agreement  that  so  much  must  be  de- 
ducted from  the  amount  of  it  as  he 
should  be  compelled  to  pay  to  obtain 
possession  of  the  house  at  the  expir- 
ation of  the  lease.    Before  the  expir- 
ation of  the  lease,  the  tenant  pulled 
down  the  house,— Held,  on  demurrer 
to  the  answer,  in  an  action  by  the  ven- 
dor on  the  note,  that  the  vendee  could 
not  counterclaim  the  value  of  the 
house.  Ogilvie  v.  Lightstone,  129 

.  The  vendee,  as  the  owner  of  the  re- 
version, had  his  remedy  against  the 
lessee  in  an  action  for  waste  ;  or  if  the 
lessee  had  a  right  to  take  the  house 
away,  his  remedy  was  upon  the  cov- 
enant hi  the  vendor's  deed.  ibt 

,  The  redemption  of  a  promissory 
note  by  the  pledgor,  on  payment  of 
an  advance  made  upon  it  as  collat- 
eral security,  will  not  carry  with  it 
the  equitable  right  of  set-off  against 
the  pledgee,  in  a  suit  by  the  pledgor 
against  the  maker  of  the  note.  TJiomp- 
son  v.  Harrison,  230 

.  The  fact  that  the  pledgee,  while  the 
note  was  in  his  hands,  brought  suit 
upon  it  in  his  own  name,  is  mere 
matter  of  evidence  of  ownership ; 
and  it  being  found  as  a  fact  on  the 
trial,  that  the  note  was  deposited  as 
collateral  merely, — Held,  that  a  coun- 
terclaim against  the  pledgee  was 
properly  disregarded.  ib. 

5.  In  cases  of  cross-indebtedness  grow- 
ing out  of  mutual  dealings,  a  court 
of  equity  will  always  interpose  to  set 
off  one  debt  against  the  other,  and 
adjudge  the  balance  to  be  the  sum 
equitably  due.    Sdiitffdin  v.    Ilair- 
kins,  289 

6.  One  of  the  cross-debtors,  after  the 
contract  creating  tin*  debt  had  l>eeii 
executed,   and    hi*    liability    fixed, 

made  an  alignment  lor  the  l>enpnt 
of  his  creditors,— Jlfbl,  that  this  did 
not  affect  the  equitable  right  of  tho 
other  to  set  off  his  debt  .  ib. 

7.  A  general  assignee  for  the  Iwncfit  of 
creditors    succeeds    iiu-rdy   to    the 


602 


INDEX. 


rights  of  the  assignor.  He  is  not,  in 
respect  to  the  property  transferred 
a  bona  fide  holder  for  value,  but 
takes  it  as  a  trustee,  subject  to  any 
equities  which  may  exist  between 
the  debtor  and  his  creditors.  tb. 

.  An  injunction  to  restrain  the  assig- 
nee from  disposing  of  the  evidence 
of  the  plaintiff's  indebtedness,  is  a 
necessary  part  of  the  relief  sought  in 
such  an  action,  and  a  motion  to  vacate 
it  was  denied. 

See  DAMAGES,  1. 

COVENANT. 

See  LANDLORD  AND  TENANT,  3, 4,  6. 
CUSTOM. 

See  CARRIERS,  8, 15, 16, 17. 
SALES,  10. 

CUSTOM    HOUSE. 

See  CONSIGNOR  AND  CONSIGNEE,  9. 
SHIPPING,  2,  3, 4, 


D 

DAMAGES. 

1.  The  amount  of  damages  recoverable 
in  an  action  brought  for  a  sum  fixed 
by  agreement  as  liquidated  damages 
may  be  reduced,  by  proving  that  a 
certain  portion  of  the  consideration 
expressed  in  the  agreement  has  not 
been  paid.  For  such  portion  the  de- 
fendant has  a  cause  of  action  arising 
out  of  the  same  transaction,  and  may 
set  it  off  against  the  plaintiff's  claim 
for  damages.  Baker  v.  C<mneU,  469 

DEBTOR  AND  CREDITOR. 

•  / 

See  INSOLVENT. 
LIMITATIONS. 

DEMURRER. 

See  PLEADINGS. 

DEFENCES. 


.. 

"ACTION,  2,  9. 
PLEADINGS,  3. 


DISCHARGE. 

See  INSOLVENT. 

DISTRESS. 

.  The  right  to  distrain  for  wharfage 
was  not  taken  away  by  the  Act  of 
1846,  abolishing  distress"  for  rent,  nor 
by  the  act  of  1860  "  in  relation  to  the 
rates  of  wharfage,"  &c.  The  refer- 
ence, in  the  latter  act,  to  section  207 
of  the  Act  of  April  9th,  1813,  is 
clearly  a  mistake,  and  the  statute 
being  a  remedial  one  will  be  con- 
strued as  a  reference  to  section  217 
of  the  same  act.  Mangum  v.  Far- 
rington,  236 

DISTRICT    COURT   PRACTICE. 

.  The  statute  is  imperative,  that  when 
it  appears  upon  the  trial,  in  a  District 
Court,  that  the  plaintiff  is  not  a  resi- 
dent, and  has  filed  no  security,  the 
complaint  must  be  dismissed.  Dean 
v.  Cannon,  34 

i.  And  is  does  not  alter  the  rule,  that 
the  fact  of  non-residence  and  failure 
to  file  security  appear,  for  the  first 
time,  upon  a  new  trial,  ordered  by 
the  appellate  Court.  .  t&. 

!.  An  order  for  a  new  trial  imposes  no 
duty  on  the  Court  below,  inconsis- 
tent with,  or  restrictive  of,  any  of  its 
powers.  The  case  is  to  be  heard  and 
decided,  on  a  new  trial,  in  the  same 
manner  as  if  the  trial  were  an  orig- 
inal one.  $>. 

4.  The  appeal  from  a  district  court  of 
the  city  of  New  York  is  to  the  Gen- 
eral Term  of  the  Court  of  Common 
Pleas,  in  that  city,  and  the  provision 
of  the  act  of  1862,  authorizing  a  re- 
trial of  cases  tried  in  a  Justice's  court 
in  a  County  court,  does  not  apply  to 
the  city  of  New  York.    AJclOtenny 
v.  Wasson,  285 

5.  Where   the  justice    of  a   District 
Court  renders  judgment  for  the  plain- 
tiff on  conflicting  evidence,  the  ap- 
pellate court  will  assume  in  respect 
to  every  point  on  which  the  testi- 
mony was  conflicting,  that  the  justice 
found     in    favor    of  the   plaintiffs. 
Dayton  v.  Rowland,  446 

6.  The    proceedings  before  a  Justice, 
who  loses  jurisdiction  by  failing  to 


INDEX. 


603 


render  his  decision  within  the  sta- 
tutory time,  are  null,  and  constitute 
no  bar  to  a  recovery  on  the  same 
cause  of  action  in  a  subsequent  suit. 
Bloomer  v.  Merrill,  485 

See  APPEAL,  6. 

v       DOMICIL. 

1.  A  married  man  having  his  family 
fixed  in  one  place,  but  doing  bus- 
iness at  another,  is  deemed  to  have 
his  residence    at    the    former,    and 
while   his  family    so  remain  fixed, 
he  cannot  acquire  a  residence  else- 
where.   Roberti   v.    Methodist    Book  1 
Concern,  13 

2.  Although  by  reason  of  a  prolonged 
absence    from    the    State,   a  party 
might  be  proceeded  against  by  at- 
tachment at  the  instance  of  a  credi 
tor,  yet  he  may  be  deemed  a  resident 
of  this  State  for  all  other  purposes,  ib. 

3.  Thus,  where  a  plaintiff  had   been 
absent  from  the  State  for  more  than 
two  yeais,  on  business,  but  his  wife 
and  minor  child  continued  to  reside 
here, — Held,  that  the  plaintiff  was  not 
such  a  non-resident  as  that  the  Court 
would  compel  him  to  file  security 
for  costs.  *5. 

See  NATURALIZATION. 
DURESS. 


the  transfer  was  voluntary,  as  the 
prisoner  might  have  acted  voluntari- 
ly, though  impelled  by  fear  of  im- 
prisonment H>. 


1.  One  who  induces  another  to  part 
with  his  property,  "  through  fright 
and  fear  of  being  locked  up,"  ob- 
tains no  title,  and  the  transaction  is 
void.    Sir-hards  v.  Vanderpoel,       71 

2.  Actual  imprisonment  is  not  necessa- 
ry to  avoid  such  a  transaction :  fear 
of  imprisonment  is  enough.  ib. 

3.  Where  the  arrest  was  illegal,  and 
the  transfer  was  made  through  fear 

.  of  imprisonment,  either  to  settle  a 
civil  suit  then  pending  betweeu  the 
parties,  or  to  compromise  the  alleged 
felony,  the  result  is  the  same,  and  no 
title  passes.  ib. 

4.  A  charge  that  if  the  jury  believed 
that  the  person  arrested  ''voluntarily 
gave  to  the  defendant  the  watch  in 

Question,  then  their  verdict  must  l>e 
>r  the  defendant,"— Held,  bad.  The 
question  how  far  the  prisoner  was 
affected  by  fear  should  have  been 
submitted  to  the  jury.  It  was  not 
enough  to  submit  to  them  whether 


E 

EQUITABLE  RELIEF. 
See  INJUNCTION. 

ESTOPPEL. 

A  party  is  not  concluded  by  every 
thing  he  may  have  said  or  done, 
even  under  oath.  The  doctrine  of 
estoppel  is  confined  within  just  and 
rational  Jimits,  and  a  party  is  not 
estopped  unless  he  has  gained  some 
benefit  or  advantage  by  the  act 
which  is  relied  upon  as  an  estoppel, 
or  unless,  by  that  act,  the  party 
claiming  the  benefit  of  the  estoppel 
was  induced  to  alter  his  condition. 
Smith  v.  Ferris,  18 

.  Thus,  where  the  plaintiff  filed  notice 
of  an  ineffectual  mechanic's  lien, 
wherein  he  swore  that  the  contract 
was  made  with  the  contractor, — 
Held,  that  in  an  action  against  tho 
owner,  the  plaintiff  was  not  estopped 
from  showing  that  such  contract 
was  in  reality  made  with  the  defend- 
ant, as  owner.  ib. 

EVICTION. 

Where  there  is  no  disturbance  of  ac- 
tual possession,  or  where  the  holding 
over  by  the  landlord  is  not  with  the 
intent  of  keepinir  the  tenant  out  of 
possession,  after  he  has  become  en- 
titled to  it,  there  can  l>e  no  pretence 
of  an  eviction.  Vanderpoel  v.  Smith, 

811 

The  plaintiff  demised  to  the  de- 
fendants a  plot  of  ground  for  ten 
years,  which  they  used  as  a  lumber 
yard,  reserving  to  himself,  the  right 
to  occupy  a  email  wooden  building 
upon  the  land,  for  a  year  and  a  hair, 
and  which  he  used  for  the  storage  of 
certain  articles  one  day  over  the 
time,  having  received  no  intimation 
from  the  lessees  of  their  intention  or 
wish  to  use  it.  Upon  that  day  they 
notified  him  of  their  intention  to  re- 
move, upon  the  ground  I  hut  lie  had 
broken  the  lease  by  withholding  a 
part  of  the  premise*,  and  Immediate* 
iy  commenced  removing,  which  oc- 
cupied them  eighteen  days,— llcld, 


604 


INDEX. 


that  there  was  no  disturbance  of  the 
lessees'  possession,  as  they  had  never 
been  in  occupation  of  the  building, 
and  as  the  holding  over  was  with  no 
design  to  retain  it  against  their  wish, 
it  was  simply  an  attempt  to  get  up 
an  eviction,  and  constituted  no  de- 
fence to  an  action  for  the  rent.  ib. 

See  LANDLORD  AND  TENANT,  5. 
EVIDENCE. 

1.  The  acts  of  a  sheriff  in  the  return  of 
a  process,  so  far  as  the  rights  of  par- 
ties are  concerned,  must  be  taken  as 
true  when  they   arise   collaterally, 
and  can  only  be  impeached  by  direct 
proceedings,  to  which  the  officer  is  a 
party ;  or  rectified  upon  a  summary 
application  to  the  court  to  correct  or 
set  aside   the  return.     Sperling  v. 
Levy,  85 

2.  Questions  to  a  witness  whether  cer- 
tain representations  alleged  in  the 
complaint  were  made  "  with  intent 
to  deceive  or  mislead ;"  and  whether 
in  his    representations,  "  he  spoke 
and  acted  in  good  faith,  and  in  the 
belief  that  what  he  said  was  true, — 
Held,  properly  excluded.    Bollard  v. 
Lockwood,  158 

3.  The  registry  of  a  vessel  at  the  Cus- 
tom House  is  prima  facie  evidence 
to  charge  a  person  as  owner,  only 
where  he  is  connected  with  its  pro- 
curement, or  in  some  way  adopts  it 
as  his  act.    Bryan  v.  Bowles,        171 

4.  Where  he  actually  procures  such  re- 
gistry, and  makes  affidavit  stating 
that  lie  is  owner,  it  is  evidence  to 
charge  him,  although  it  may  be  re- 
butted, ib. 

5.  "Where  a  bill  of  sale,  absolute  on  its 
face,  bore  date  June,  1856,  and  the 
registry  pursuant  thereto  was  made 
Decemhjer,  1857,  evidence  to  show 
that  the  bill  of  sale  was  by  way  of 
mortgage,  and  did  not  take  effect  ab- 
solutely till  the  latter  date,  and  that 
the  vendee  did  not  enter  into  pos- 
session until  such  later  date,  is  prop- 
er, and  should  be  admitted  to  rebut 
the  presumption  of  ownership,  in  an 
action  to  charge  the  mortgagee  as 
owner  of  the  ship.  ib. 

6.  The  coercion  of  the  wife  which  is 
supposed  to  exist  in  all  cases  of  tort, 
committed  by  her  in  the  presence  or 


.by  the  direction  of  her  husband,  and 
for  which  the  husband  alone  is  pre- 
sumptively liable,  is  but  a  presump- 
tion of  law,  w,hich  may  be  repelled 
by  proof.  Cassin  v.  Delaney,  224 

.  And  where  the  evidence  justified  the 
referee  in  his  conclusion  that  the 
wrongful  act  of  the  wife  was  volun- 
tary on  her  part,  and  was  her  indi- 
vidual act,  and  although  in  some  re- 
spects done  in  the  presence  and  com- 
pany of  her  husband,  yet  was  not 
done  by  his  command  or  coercion, — 
Held,  that  the  Court  will  assume  as 
a  matter  of  fact  that  the  legal  pre- 
sumption of  coercion  of  the  wife  has 
been  repelled  by  proof.  ib. 

.  A  written  contract  may  be  inter- 
preted by  the  local  customs  in  refer- 
ence to  which  it  was  made,  and  it  is 
error  to  exclude  evidence  of  such 
customs. 

.  As  between  the  lessor  of  a  bulkhead 
and  the  lessor  of  the  adjoining  pier, 
evidence  of  the  custom  of  the  port  is 
admissible  to  show  how  far  wharfage 
is  collectible  for  the  use  of  the  bulk- 
head, and  to  what  extent  for  the  use 
of  the  pier.  Mangum  v.  Farrington, 

236 

10.  Admissions  are  a  species  of  evi- 
dence usually  received  with  great 
caution  from  the  ease  with  which 
they  can  be  fabricated,  and  the  lia- 
bility   to    misapprehend  what  was 
said  ;  but  where  a  positive  admission 
by  the  parties  to  the  suit  who  are 
competent  witnesses,  is  sworn  to,  and 
they  neither  contradict,  qualify,  nor 
offer  any  explanation  of  it,  it  then 
becomes  evidence  of  a  very  satisfac- 
tory character.    Hodden  v.  N.  Y.  Silk 
Mftg.  Co.,  888 

11.  Parol    evidence  is    admissible   to 
show    that    the    consideration    ex- 
pressed in  an  instrument  under  seal, 
and  therein  acknowledged  to  have 
been  received,  was  not  in  fact  paid ; 
subject  to  the  restriction  that  such 
evidence  shall  not  have  the  effect  of 
defeating  the  instrument,  so  as  to 
render  it  void  for  the  want  of  any 
consideration.  Baker  v.  Connett,  469 

12.  The  answer  of  a  witness  that  the 
consideration  of  a  sale  of  chattels 
was  a  sum  of  money  and  "  one  hun- 
dred acres  of  land,"  is  not  open  to 
objection  on  the  ground  that  it  gives 


INDEX. 


605 


the  contents  of  a  deed,  of  land  not 
produced  on  the  trial.  '  Reynolds  v. 
KeUy,  .  283 

13.  The  rule  that  questions  arising  up- 
on conflicting  evidence  must  be  left 
to  the  tribunal  that  hears  the  testi- 
mony, and  sees  the  witnesses  upon 
the  stand,  is  inflexible,  and  the  ap- 
pellate court  cannot  invade  it  mere- 
ly because  it  thinks  the  case  war- 
ranted a  different  conclusion.         ib. 

14.  As  a  general  rule,  parol  evidence  is 
always  admissible  to  ascertain  the 
nature  and  qualities  of  the  subject 
to  which  an  instrument  refers.  Vary 
V.  Thompson,  35 

15.  And  when  evidence  was  excluded 
which  tended  to  show  that  it  was  the 
understanding  of  both  parties,  when 
the  lease  was  executed,  that  the  se- 
cond or  rear  yards  were  intended  to 
be,  and  were  embraced  hi  it — Held, 
error,  and  a  new  trial  will  be  ordered. 

ib. 

16.  To  entitle  a  written  contract  be- 
tween one  of  the  parties  and  a  third 
person  to  be  admitted  in  evidence, 
its  pertinency  must  be  first  shown. 
Smith  v.  Ferris,  19 

17.  The  defendant  on  the  trial  testified 
that  he  had  had  no  other  conversa- 
tion   with    the    plaintiff,  than  that 
sworn  to  by  him.    He  then  put  in 
evidence  a  certain  mechanic's  lien 
proceeding,  and  rested.  The  plaintiff 
was  recalled,  and  testified  that  he 
had  had  another  conversation  than 
that  testified  to  by  the  defendant ; 
and  then  detailed  such  conversation 
relative  to  the  mechanic's  lien  pro- 
ceeding.   The  defendant  offered  him- 
self as  a  witness  to  contradict  the 
plaintiff's  version  of  such  conversa- 
tion, which  offer  the  justice  refused 
Held,  error.    The  testimony  proposed 
by  the  defendant  was  not  to  contra- 
dict his  own  previous  testimony,  but 
to  obviate  the  effect  of  plaintiff  s  tes- 
timony as  to  the  lien  proceeding,   ib. 

18.  A  contractor  failed  to  complete  his 
contract,  and  the  owner  was  com- 
pelled to  complete  the  building.    In 
an  action  by  a  sub-contractor  against 
the  owner  for  work  and  materials, 
for  which  a  lien  had  been  filled, — 


purpose  of  showing  that  nothing  was 
due  to  the  contractor,  and,  conse- 
quently, nothing  due  to  the  plaintiff, 
as  sub-contractor.  ib. 

19.  It  seems,  that  the  plaintiff  has  a  right 
to  prove  the  ownership  of  the  party 
charged,  however  numerous  the  re- 
cord-evidences are  to  the  contrary, 
provided  that  those  evidences  were 
created  for  the  purpose  of  defrauding 
him,  or  defeating  claims  arising  under 
the  lien  law.  Bailey  v.  Johnson.  61 

See  CONTRACTS,  6. 
COUNTERCLAIM,  4. 
LANDLORD  AND  TENANT,  2. 

w 

EXECUTORS      AND      ADMINIS- 
TRATORS. 

1.  Where  a  married  woman  authorized 
her  husband  to  contract  for  work  and 
materials  for  a  dwelling  house  she 
was  erecting  upon  her  separate  estate 
and  for  the  repairs  of  other  buildings 
also  belonging  to  her  estate,  which 
contract  was  partially  executed  dur- 
ing her  life,  and  was  completed  after 
her  death, — ZfeW,that  her  husband, to 
whom  she  had  left  a  life  interest  in 
her  estate  after  the  payment  of  a  cer- 
tain legacies,  and  appointed  her  ex- 
ecutor with  power  to  manage,  mort- 
gage or  sell  her  estate,  and  to  invest 
the  proceeds  as  he  should  deem  mo.-t 
advantageous   for   those    interested, 
was  not  liable  in  his  individual  capac- 
ity for  what  was  done  under  the 
contract  either  before  or  after  the 
wife's  death,  that  he  was  answerable 
only  in  his  representative  character  as 
her  executor,  and  having  died  without 
paying  the  debt,  that  the  administra- 
tor of  the  estate  with  the   will  an- 
nexed was  bound  to  pay  the  debt  out 
of  assets  in  his  hand.  Itibkt  v.  Walli*, 

860 

2.  The  rule  that  an  executor,  if  he  have 
sufficient  assets,  is  liable  to  a  third 
person  who,  as  an  act. of  duty  or 
necessity,  has  provided  for  the  inter- 
ment or  the  deceased,  is  the  same  in 
the  case  of  an  administrator  ,  and  a 
person  who   defrays   the    necessary 
funeral    expenses    of    an    intestate, 
though  before  letters  of  administra- 
tion are  granted,  is  entitled  to  l>e  reim- 
bursed out  of  the  assets  which  come 
in  in  the  hands  of  the  administrator. 
Rappdyea  v.  liustell,    .  214 


Held,  that  the  defendant  might  prove 
on  the  trial  what  it  had  actually  cost 
him  to  complete  the  building,  tor  the|3.  An  administrator,  having  UttUio 


606 


DsTDEX. 


his  hands,  "who  refuses  or  neglects  to 
pay  the  funeral  expenses  of  the  in- 
testate, being  requested  to  do  so,  is 
individually  liable  at  the  suit  of  the 
person  who  has  been  at  the  expense 
of  the  funeral.  ib. 

4.  The  plaintiff,  an  undertaker,  super- 
intended the  burial  of  an  intestate 
having  no  friends  or  relations  in  the 
city.  The  defendant,  as  Public  Ad- 
ministrator, afterwards  took  out 
letters,  and  having  in  his  hands  suffi- 
cient assets,  refused  to  pay  the  plain- 
tiff's bill, — Held,  that  he  was  individ- 
ually liable  therefor. 

EXPRESS    COMPANIES. 

See  CAKRIERS. 

SALE  AND  DELIVERY,  3. 


FACTOR 

See  BROKER. 
COMMISSIONS. 
PRINCIPAL  AND  AGENT. 

t 

FALSE   REPRESENTATIONS. 
See  FRAUD,  1,  2. 

FIXTURES. 

1.  In  an  action  by  a  tenant  to  recover 
damages  for  the  unlawful  removal 
of  fixtures  during  his  possession  of 
the  premises,  proof  of  a  demand  is 
unnecessary.    And  a  judgment  ren- 
dered for  the  defendant  hi  such  an 
action,  on  the  ground  that  no  de- 
mand for  the  possession  of  the  fix- 
tures had  been  shown,  will  be  re- 
versed.   Beardsley  v.  Sherman,   325 

2.  The  adjustment  of  gas-fixtures  to  a 
gas-pipe  is  not  such  an  annexation 
to  the  freehold  as  to  make  them  a 
part  of  the  realty,  and  subject  to  the 
operation  of  a  grant  thereof.    Shaw 
v.  Lenke,  487 

FORMER    ADJUDICATION. 

1.  The  record  of  a  dismissal  of  the 
complaint  between  the  same  parties 
in  another  court,  for  the  purpose  of 
proving  a  former  adjudication,  is  in- 
admissible in  evidence,  unless  it  is 
shown  that  such  dismissal  was  a 


judicial  determination  of  the  same 
point  in  controversy  here.  Smith 
v.  Ferris,  18 

2.  A  suit  against  a  vessel  in  the  United 
States  Court  for  advances,  is  no  de- 
fence to  an  action  upon  the  lien  of 
the   master    of  the    vessel  on  the 
freight,  unless  the  plaintiffs  had  such 
lien  at  the  time  of  the  commence- 
ment of  the  action  in  rare.    Sorley  v. 
Brewer,  79 

3.  Where  a  claim  has  been  interposed 
in  a  former  action,  by  way  of  set  off, 
and  has  been  duly  passed  upon  in 
such  action,  it  is  res  adjudicate,  and 
the  former  action  is  a  bar  to  a  new 
action  by  the  defendant  against  the 
plaintiff  hi  the  former  suit.     Rogers 
v.  Rogers,  194 

FRAUD. 

1.  In  an  action  to  recover  damages 
sustained  by  reason  of  the  fraudulent 
representations   of    the    defendant 
concerning    the    credit    and    good 
standing  of  another,  doing  business 
under  the  designation  of  agent,  it  is 
wholly  immaterial  whether  or  not 
it  is  the  understanding  in  mercantile 
circles  that  a  person  doing  business 
under  such  designation  is  not  re- 
sponsible.   Ballard  v.  Lockwood,  158 

2.  And  in  such  an  action,  it  is  immate- 
rial whether  the  plaintiff  received 
any  information  as  to  the  standing 
of  the  party   from  mercantile  agen- 
cies, or  whether  the  plaintiff  was  a 
subscriber   to    such    agencies ;  the 
question  to  be  tried  being  whether 
the  defendant  made  the  statements 
untruly,  and  from  bad  motives.      t&. 

See  CONTRACTS,  4,  5,  6. 

LANDLORD  AND  TENANT,  17, 18. 

FREIGHT. 

1.  In  the  absence  of  a  special  agree- 
ment to  the  contrary,  freight  paid  in 
advance  may  be  recovered  back, 
where,  by  reason  of  the  capture  or 
shipwreck  of  the  vessel,  or  for  any 
other  cause,  the  goods  are  not  car- 
ried to  the  place  of  their  destination. 
And  this  rule  of  law  cannot  be  con- 
trolled by  proof  of  any  usage  to  the 
contrary.  Emery  v.  Dunbar,  408 

See  ACTION,  3. 
CARRIER, 
CONTRACT,  4,  6. 


ESfDEX. 


607 


H 


HARBOR   MASTERS. 
See  NEW  YORK  Crrr,  6,  7,  8. 

HUSBAND  AND  WIFE. 
See  EVIDENCE,  6,  7. 

EXECUTOK  AND  ADMINISTRATOR,  1 

LANDLORD  AND  TENANT,  7. 
MARRIED  WOMAN. 


INFANTS. 

A  minor  who  obtains  property  upon 
representations  that  he  is  of  full  age 
is  liable  in  an  action  of  tort,  either 
lo  recover  the  property  back,  or  to 
recover  damages  upon  the  grounc 
that  it  was  wrongfully  obtained 
Eckstein  v.  Franks,  334 

INJUNCTION. 

Where  the  plaintiff  had  made  advan- 
ces for  the  benefit  of  a  vessel,  and 
had  taken  an  assignment  of  the  mas- 
ter's lien  on  the  freight  therefor,  and 
the  owners  of  the  vessel  were  insol- 
vent,— Held,  a  proper  case  for  an  in- 
junction, and  the  appointment  of  a 
receiver  to  collect  such  freight,  not- 
withstanding the  allegations  of  the 
answer  and  affidavits  showed  that 
the  defendants  had  chartered  the 
vessel  from  the  owner  for  such  voy- 
age. Sorley  v.  Brewer,  79 

See  APPEAL,  4,  5. 
COUNTERCLAIM,  8. 

INNKEEPER. 

1.  Where  a  guest  at  an  inn  is  notified 
that  he  must  put  his  baggage  in  a 
particular  place,  that  it  may  be  safe- 
ly kept,  and  he  neglects  to  do  so,  the 
innkeeper  is  not  liable  in  case  of  its 
loss.     Wilson  v.  Halpin,          .      496 

2.  A  guest  was  lodged  in  defendant's 
inn,  in  a  room  with  several  other 
persons,    without  objection  on  his 
part.    He  asked  the  chambermaid  if 
he  might  leave  his  baggage  in  the 
room,  and  was  told  by  her  to  deposit 
it  with  the  clerk  at  the  bar,  that  be- 
ing the  established  regulation  of  the 
house.  The  guest  placed  his  baggage 
under  his  bed,  and  during  his  tem- 


porary absence  from  the  room  it  was 
taken, — Held,  that  the  innkeeper  was 
not  liable.  #. 

See  CARRIERS,  2. 

INQUEST. 
See  APPEAL,  7. 

INSOLVENT. 

1.  The  insolvent  laws  of  a  State  cannot 
affect  a  creditor  residing  out  of  the 
State,  at  the  time  of  the  application 
for  the  discharge,  who  does  not  par- 
ticipate in  the  proceed  bigs   under 
such  laws,  even  though  his  debt  be  a 
judgment    recovered    within    such 
State.    Lester  v.  Ghristalar,  29 

2.  And  a  resident  of  this  State,  by  an 
assignment  to  him  of  such  judgment 
after  that  discharge,  acquires  a  valid 
and  subsisting  interest,  which  is  not 
affected  by  the  discharge.  *&. 

.  Whether  a  judgment  recovered  hi 
this  State  is  a  contract  to  be  made  or 
executed  in  this  State  within  the 
meaning  of  the  insolvent  law — Que- 
ry ?  id. 

INSURANCE. 

.  The  words  "  privilege  for  $4,500  ad- 
ditional insurance,"  written  in  the 
body  of  a  policy  of  insurance, — Held, 
to  work  a  waiver  of  a  subsequent 
printed  condition  in  the  policy,  re- 
quiring notice  to  be  given  to  the  in- 
surers of  any  other  insurance  (with- 
in the  sum  specified,)  and  to  have 
the  same  endorsed  on  the  policy. 
Benedict  v.  Ocean  Ins.  Co.,  9 

,  The  true  intent  and  meaning  is,  that 
the  insured  may  obtain  further  in- 
surance without  notice  to  the  compa- 
ny, and  without  affecting  their  policy 
or  their  liability  upon  it,  provided 
such  additional  insurance  does  not 
exceed  $4,500.  ib. 

Where  it  is  shown  that  the  company 
prepared  the  policy  of  insurance  aft- 
er a  careful  examination  of  the  in- 
sured premises  bv  their  own  survey- 
or, and  with  a  full  knowledge  of  the 
nature  of  the  risk, — IfeM,  that  any 
misdescription  of  the  policy  was  tho 
fault  of  the  company,  and  the  In- 
sured should  not  IHJ  called  upon  to 
bear  the  consequences.  tb. 


608 


INDEX. 


4.  A  cellar  is  not  one  of  the  "  stories  "  2.  The   defendants   having    lost   the 


of  a  building. 

5.  Where  in  a  policy  of  insurance,  al- 
though a  "  time  policy,"  a  geograph- 
ical track  is  declared,  and  the  in- 
sured is  specifically  prohibited  from 
entering  certain  ports, — Held,  that  a 
voluntary  voyage  to  any  such  prohi- 
bited port  amounted  to  a  breach  of 
the  warranty  of  the  insured  not  to 
enter  such  ports,  and  that  from  that 
time  the  policy  ceased  to  cover  or 
protect  the  vessel.    Day  v.   Orient 
Mutual  Ins.  Co.,  IS 

6.  Held  further,  that  a  permission  to 
use  one  of  the  prohibited  ports,  in- 
dorsed on  the  policy,  did  not  abro- 
gate the  warranty  in  the  policy  "not 
to  use  foreign  ports  or  places  in  the 
Gulf  of  Mexico."  ib. 

7.  Held  further,  that  the  subsequent  re- 
turn of  the  vessel  in  safety  in  no  way 
revived  or  restored  the  original  obli- 
gation of  the  insurers,  and  no  action 
can  be  maintained  for  her  loss  after 
such  deviation. 

See  CONTRACTS,  8. 
INTERNAL    REVENUE. 

1.  Where  the  proportionable  amount 
of  the  tax  on  gross  receipts  of  a  rail- 
road company,  imposed  by  the  U.  S. 
Internal  Revenue  Law,  which  is  al- 
lowed by  the  statute  to  be  added  to 
and  collected  with  the  fare  of  each 
passenger,  is  a  fractional  part  of  one 
cent, — Held,  that  the  company  is  lim- 
ited to  such  fractional  amount,  and 
there  being  no  coin  hi  which  it  can 
be  paid,  the  loss  must  fall  on  the 
company,  and  not  on  the  passengers. 
Slack  v.  Sixth  Avenue  R  R.  Co.,  536 


JUDGMENT. 

1.  An  irregularity  in  the  mode  of  en- 
tering up  a  judgment,  is  waived  by 
an  appeal  from  the  judgment ;  and 
after  an  affirmance  upon  the  appeal 
a  motion  to  set  aside  the  judgment 
for  irregularity  will  not  be  enter- 
tained. Mayor,  &c.  v.  Lyons,  296 


right  to  move  to  set  aside  the  judg- 
ment, upon  the  ground  of  irregular- 
ity, the  Court  permitted  the  plaintiff 
to  amend  the  judgment  by  entering 
it  up  for  the  penalty,  that  other  suit- 
ors, if  any,  might  be  enabled  to  have 
the  amounts  recovered  by  them 
levied  under  the  judgment.  ib. 

3.  In  an  action  against  a  constable's' 
bond  in  the  city  of  New  York,  where 
it  has  been  adjudged  that  the  answer 
was  frivolous,  it  is  erroneous  to  en- 
ter up  a  general  judgment  for  the 
sum  mentioned  in    the  complaint. 
Mayor,  &c.  v.  Lyons,  296 

4.  Judgment  should  be  entered  up  for 
the  penalty  of  the  bond,   and  the 
Court  moved  for  an  order,  under  the 
act  of  1813,  directing  so  much  money 
to  be  levied  upon  the  judgment  as 
shall  be  sufficient  to  satisfy  the  debt 
or  damages  of  the  party  aggrieved. 

ib. 

5.  In   such    an  action  the   summons 
should  be  for  relief,  under  subd.  2  of 
§  129,  of  the  Code.  ib. 

6.  In  an  action  against  joint  debtors  or 
obligors  where~all  are  named  as  de- 
fendants a  several  judgment  cannot 
be  given.    Sage  v.  Nichols,  1 

7.  If,  in  equitable  actions,  all  the  ques- 
tions in    controversy    between  the 
parties  have  been  determined   upon 
the  hearing,  and  what  remains  is 
merely  the  machinery  set  in  motion 
by  the  Court  to  carry  its  decision  in- 
to effect,  its  decision  is  final.    But  if 
anything  is  left  involving  future  liti- 
gation,    the     determination     upon 
which  might  affect  the  ultimate  ad- 
justment of  the  rights  of  the  parties, 
the  decision,  decree  or  order  made, 
is  merely  interlocutory.     Smith  v. 
Lewis,    '  452 

See  APPEARANCE,  2. 
APPEAL,  2. 
INSOLVENT,  3 
MARINE  COURT,  5,  6. 
PRACTICE. 

JURY. 

1.  The  dimensions  of  a  roof-  being 
known,  and  the  number  and  charac- 
ter of  the  rain-storms  within  a  cer- 
tain period  being  shown,  the  jury 
have  data  upon  which  they  may  de- 


INDEX. 


609 


termiue  the  quantity  of  rain  which 
•was  probably  precipitated  from  the 
roof  during  that  period.  Tlwmas  v 
Kenyon,  132 

2.  And  a  question  to  a  witness  as  to 
the  quantity  of  such  rain  is  wholly 
scientific,  and  being  put  to  a  witness 
who  was  not  shown  to  be  familliar 
with  the  laws  which  govern  the  sub- 
ject, was  properly  excluded.  ib, 

3.  Where    a  question  stands  doubtful 
upon  an  uncontroverted  state  of  fact 
or  where  the  facts  will  admit  of  eith- 
er of  two  conclusions,  the  solution  oi 
the  question  should  be  left  to  the 
jury,  and  their  determination  is  con- 
trolling and  final.  Place  v.  Mcllvain, 

266 

See  PRACTICE,  5. 
CAKUIER,  7. 

JURISDICTION. 
See  COSTS,  2,  3. 


LANDLORD    AND    TENANT. 

1.  A  conveyance,  in  general  terms,  of 
a  house,  passes  everything  that  be- 
longs   to    the  house  with    it,    and 
whether  a  thing  is  parcel  or  not,  of 
the  thing  demised,  is  always  matter 
of  evidence.    Gary  v.  T/tompson,     35 

2.  The  plaintiff,  by  a  sealed  lease,  rent- 
ed to  defendant  two  houses,  describ- 
ing them  as  "  Nos.  162  and  164  Sev- 

.  enth  Avenue" — Held,  that  parol  evi- 
dence was  admissible  to  show  that  a 
certain  rear  yard  or  lot  passed  with 
the  demise  of  the  two  houses.  ib. 

3.  Where  a  lease  contains  a  covenant 
for  renewal  upon  a  rent  to  be  fixed 
by  arbitrators,  and  the  covenant  is 
silent  as  to  the  time  when  such  arbi- 
trators shall  be  appointed,  the  cove- 
nant will  be  construed  to  mean  that 
they  shall  be  appointed  a  reasonable 
time    before  the  expiration  of  the 
lease.     Wells  v.  D6  Leyer,  89 

4.  A  lessee,  under  such  a  covenant, 
having  been  notified  that  the  lessor 
had    appointed    an    arbitrator,  and 
being  required  to  appoint  one  on  his 

89 


own  behalf,  before  the  expiration  of 
the  lease,  and  having  failed  to  do  so, 
has,  at  the  option  of  the  lessor, 
waived  his  right  to  such  renewal ; 
and  the  landlord  having  given  the 
lessee  notice  that  he  should  require 
him  to  pay  a  rent  of  $200 — this  was 
held  a  new  letting  from  year  to  year, 
and  not  a  renewal  of  the  former 
lease,  ib. 

5.  An  allegation  in  an  answer  to  an  ac- 
tion founded  upon  a  lease,  that  the 
defendant  made  the  contract  of  hir- 
ing,   without    knowledge  that  the 
premises  had  been  previously  occu- 
pied as  a  brothel,  with  the  assent  of 
the  plaintiff,  who  fraudulently  and 
with  intent  to  deceive,  had  suppress- 
ed that  fact ;  and  that  having  entered 
into  the  occupation  of  the  premises, 
he  and  his  family  were  so  annoyed 
and  insulted  by  lewd  persons  calling 
at  all  times  during  the  day  and  even- 
ing to  obtain  entrance  for  improper 
purposes,  that  he  could  not  quietly 
and  peacefully  enjoy  the  premises, 
and  was  thereby  evicted  therefrom 
by  the  wrongful  acts  of  the  plaintiff, 
— Held,  on  a  motion  for  judgment  on 
the  pleadings,  no  defence  to  the  ac- 
tion. Upon  a  demise,  the  landlord  is 
not  bound  to  disclose  to  a  lessee  the 
uses  to  which  the  demised  premises 
have  been  previously  put,  and  in  the 
absence  of  any  express  covenants  in 
the  lease,  there  can  be  none  implied 
by  which  the  lessor  can  be  held  as 
warranting  the  premises  fit  for  the 
purposes  for  which  they  are  rented. 
The  landlord  cannot  be  held  liable 
for  the  conduct  of  strangers,  and  es- 
pecially when  relief  might  be  had 
against  them  on  application  to  the 
police ;  nor  can  the  acts  of  strangers 
claiming  under  no  title,  produce  an 
eviction.  Meeks  v.  JBov-erman,         99  , 

6.  The  covenant  of  quiel  enjoyment  ex- 
pressed or  implied  in   a  lease,  only 
goes  to  the  extent  of  engaging  that 
the  landlord  has  a  good  title  and  can 
give  a  free  and  unincumbered  leuse 
of  the  premises  demised.    The  acts 
of  strangers,  not  claiming  under  any 
title,  cannot  in  any  sense  be  regarded 
as  a  breach  of  such  covenant  on  the- 
part  of  the  lessor.  ib. 

'.  A  lease  executed  by  a  married  wo- 
man, containing  covenants  on  her 
part  to  pay  the  rent,  and  expressing 
no  intention  to  charge  her  separate 
estate  therefor,  is  absolutely  void, 


610 


INDEX. 


and  constitutes  no  bar  to  an  action 
against  the  husband  for  use  and  oc- 
cupation. Vincent  v.  BuJder,  1G5 

8.  A  tenant  from  month  to  month  is 
under  no  obligation  to  make  sub- 
stantial repairs.  Johnson  v.  Dizon,  178 

•  9.  The  lessor  is  bound  to  make  such  re- 
pairs as  are  necessary  to  make  the 
premises  secure  and  safe  for  the  pur- 
poses for  which  they  are  rented ;  and 
if  its  insecurity  is  known  to  him,  it 
is  negligence  not  to  do  so.  ib. 

10.  The  rule  that  tenant  takes  premises 
at  his  own  risk  (caveat  emptor),  does 
not  apply  where  the  premises  be- 
come dangerous  or  uninhabitable  by 
the  wrongful  act  or  default  of  the 
landlord.  ib. 

11.  Where  a  stall  was  leased  for  the 
purpose  of  keeping  a  horse,  and  the 
tenant  informed  the  landlord  of  a  de- 
fect in  the  floor,  and  the  landlord 
gave  an  explanation  of  it,  and  said 
he  would  attend  to  it,  and,  through 
relying  on  such  explanation  and  pro- 
mise, in  consequence  of  the  insecur- 
ity of  the  floor,  the  horse  was  injured, 
— Held,  that  this  was  negligence  on 
the  part  of  the  landlord,  and  that  the 
tenant  might  recover  damages  for 
such  injury.  ib. 

12.  Where  a  tenant  remains  in  posses- 
sion after  the  expiration  of  his  term, 
upon  the  assurance  of  the  landlord 
that  he  will  give  him  a  lease  for  ten 
years  at  a  stipulated  rent,  and  quits 
the  premises  upon  the  landlord  re- 
fusing to  do  so,  there  is  no  implied 
agreement  for  the  payment  of  rent 
during    the    period    of  occupation. 
Oreaion  v.  Smith,  380 

13.  There  must  be  some  act  of  the  par- 
ties from  which  the  law  implies  an 

.  agreement  to  occupy  for  a  year,  to 
create  a  yearly  tenancy,  and  unless 
such  acts  can  be  shown,  the  law  will 
not  make  a  contract  for  them.  ib. 

14.  The  occupant  paid  rent  for  the  first 
quarter  at  the  rate  to  be  fixed  by  the 
promised  lease,  and  left  before  the 
expiration  of  next  quarter  upon  the 
landlord  putting  up  a  bill  announc- 
ing that  the  premises  were  to  let,  and 
on  his  refusal  to  execute  and  deliver 
the  lease, — Held,  the  occupant  was 
not  bound  to  pay  rent  for  the  por- 
tion of  the  quarter  which  he  had  oc- 


cupied. There  was  not,  in  such  a 
case,  that  holding  oyer  which  will 
create  a  tenancy  from  year  to  year, 
'  or  that  agreement  for  occupation 
which  would  be  valid  by  statute  un- 
til the  1st  of  May  following;  or 
which  would  entitle  the  landlord,  un- 
der the  statute,  to  a  reasonable  satis- 
faction for  use  and  occupation,  ib. 

15.  Although   such   parol   agreement 
was  void  by  the  statute  of  frauds,  the 
plaintiff  is  not  entitled  thereby  to 
any  advantage.     The  law  will  leave 
him  to  the  consequences  of  an  act, 
which,  if  injurious,  he  might  have 
avoided.  ib. 

16.  No  contract  is  implied  that  a  house 
is  fit  for  habitation,  as  the  tenant  can 
examine  it,  and  the  landlord  may 
know  no  more  respecting  it  than  it 
is  in  the  power  of  the  tenant  to  dis- 
cover for  himself.  But  where  the  land- 
lord knows  that  a  cause  exists  which 
renders  the  house  unfit  for  occupa- 
tion, it  is  a  wrongful  act  on  his  part 
to  rent  it  without  notice  of  its  con- 
dition ;  and  where  the  tenant,  after 
discovering    the    condition   of    the 
house,  quits  it,  the  landlord  should 
not  be  permitted  to  |.ake  advantage 

•  of  his  own  wrong  and  enforce  the 
contract  for  the  payment  of  the  rent. 
Wallace  v.  Lent,  481 

17.  A  landlord  rented  a  dwelling  house 
to  a  tenant  without  disclosing  the 
fact,  of  which  he  was  aware,  that 
there  was  a  deleterious  stench  in  the 
house,  proceeding  from   some    un- 
known cause,  which  rendered  it  un- 

•  fit  for  habitation.  The  tenant,  ignor- 
ant of  the  circumstance,  went  into 
possession  with  his  family,  and  in  a 
very  short  time  all  the  inmates  of 
the  house  experienced  the  injurious 
effects  of  the  stench,  producing  vom- 
iting, &c.  The  tenant  attempted  to 
abate  the  nuisance,  but  without  ef- 
fect ;  and  after  a  month's  occupa- 
tion, on  the  advice  of  his  family  phy- 
sician, quit  the  premises. — Held,  that 
the  concealment,  was  a  fraud  on  the 
part  of  the  landlord,  and  that  the 
tenant  was  justified  in  leaving,  ib. 

18.  Even  where  fraud  has  been  prac- 
ticed, a  tenant,  if  he  continues  to  oc- 
cupy the  premises,  must  pay  rent 
therefor,  but  after  the  discovery  of 
the  fraud,  he  is  entitled  to  a  reason- 
able time  within  which  to  repudiate 
the  contract.  *&. 


INDEX. 


611 


19.  Thus  where  the  tenant  continued  in 
occupation  about  a  month,  but  did 
so  under  the  assurance  of  the  land- 
lord that  the  cause  of  the  complaint 
should  be  removed, — Held,  that  his 
continuance  during  that  period  was 
not  of  such  a  nature  as  to  amount  to 
an  adoption  of  the  contract,  or  to 
make  the  tenant  liable  for  the  pay- 
ment of  the  rent  for  the  period  while 
in  actual  occupation.  ib. 

20.  The  plaintiff  was  in  possession  of 
certain     premises    under    a    parol 
agreement  with  the  owner  that  he 
should  have  a  lease  for  five  years  af- 
ter May  1st  following.     The  defend- 
ant having  become  the  owner  of  the 
premises,  the  plaintiff  agreed  in  wri- 
ting to  surrender  possession  of  them 
to  him  on  the  1st  of  October  preced 
ing  said  1st  day  of  May.  on  payment 
of  $350,— Held,   1.   That  the  paro" 
agreement  between  plaintiff  and  first 
owner  was  valid,  and  gave  the  plain- 
tiff a  right  of  possession  until  the  1st 
day  of  May  thereafter.    2.  That  the 
plaintiff's    agreement  with  the  de- 
fendant was  founded  upon  a  suffi- 
cient consideration  and  was  valid ; 
and  the  plaintiff  having  performed 
on  his  part,  was  entitled  to  compel  a 
performance  on  the  part  of  the  de- 
fendant. To  entitle  plaintiff  to  recov- 
er the  amount  agreed  to  be  paid  on 
his  surrender  of  possession,  he  was 
bound  to  show  that  he  was  ready 
and  willing  to  surrender  on  the  day 
agreed  on,  unless  a  strict  compliance 
with  the  condition,  on  that  day,  was 
waived  by  the  defendant ;  and  if 
such  were  the  fact,  it  rested  with  the 
plaintiff  to  show  it.    Cogert  v.  D&rn, 

259 

21.  What  facts  will  show  a  waiver  of 
strict  performance — query  ?  ib. 

22.  On  the  1st  of  October,  the  defend- 
ant's agent  came  to  the  house  to  take 
the  height  of  the  buildings.    He  had 
not  been  instructed  by  the  defendant 
to  get  the  key,  s.nd  the  plaintiff,   in 


consequence  of  a  violent  storm  that 
day,  and  because  he  could  not  get 
into  the  house  he  was  going  to,  did 
not  resume  his  effort  until  the  next 
day, — Held,  that  though  the  evi- 
dence of  a  waiver  on  the  part  of  the 
defendant  was  slight,  and  perhaps 
doubtful,  yet  the  Court  below  hav- 
ing deemed  it  sufficient,  tlK  judg- 
ment should  not  be  disturbed.  ib. 


23.  The  statute  of  1860,  ch.  345,  per-  3.  It  is  the  province  of  the  Court,  sit 


mitting  lessees  to  surrender  buildings 
rendered  untenantable  by  the  ele- 
ments, applies  only  where  the  injury 
or  destruction  occurs  after  the  les- 
see's entry,  and  not  where  it  exists 
at  the  time  of  making  the  lease. 
Bloomer  v.  Merrill,  485 

24.  A  tenant  informed  his  landlord 
that  he  should  leave  his  premises  on 
the  1st  of  January,  and  was  told  that 
if  he  did  so,  the  landlord  would  let 
the  premises  on  his  account,  and 
hold  him  responsible  for  the  rent. 
Subsequently,  the  landlord  sent  a 
person  to  occupy  the  house,  and  the 
tenant  moved  out  without  further 
remark, — Held,  that  this  did  not  re- 
lease the  tenant  from  his  lease.  ib. 

See  ARBITRATION. 
EVICTION. 

LEASE. 

t 

See  LANDLORD  AND  TENANT. 

EVIDBNCE,  15. 

LIEN. 

•  See  ACTION,  3. 

INJUNCTION,  1.  « 
MECHANIC'S  LIEN. 
SALE  AND  DELIVERY,  4.  5, 6,7. 


LIMITATIONS  (STATUTE  OF). 

1.  To  revive  a  debt  barred  by  the  stat- 
ute of  limitations,  where  no  promise 
to  pay  is  shown,  but  one  is  sought  to 
be  implied  from  an  acknowledgment 
of  the  indebtedness,  the  acknow- 
ledgment should  contain  an  unqual- 
ified and  direct  admission  of  a  pre- 
vious subsisting  debt,  for  which  the 
party  is  liable,  and  willing  to  pay  ; 
and  the  recognition  must  be  unac- 
companied by  any  circumstance  cal- 
culated to  repel  the  presumption  of 
an  intent  or  promise  to  pay.  Loomis 
v.  Decker,  180 


2.  When  the  debtor,  in  a  letter  to  the 
creditor,  said,  "  I  don't  recollect 
when  the  bill  was  made,  but  if  it  is 
all  right,  I  will  make  it  satisfactory," 
and  added  that  he  had  certain  rail- 
road bonds,  which  he  hoped  would 
be  accepted  in  payment,  "  as  money 
was  out  of  the  question," — Held,  suffi- 
cient to  take  the  case  out  of  the  stat- 
ute, ib 


612 


INDEX. 


ting  as  a  jury,  to  find,  as  matter  of 
fact,  whether  a  new  promise,  under 
the  circumstances,  might  fairly  be 
implied,  and  a  finding  oy  the  Court 
in  this  respect,  like  the  verdict  of  a 
jury,  must  be  deemed  final.  ib. 

See  PARTIES  TO  ACTIONS,  4. 
LIQUIDATED  DAMAGES. 
See  DAMAGES. 

M 

MARINE    COURT. 

Q 

1.  Judgment  may  be  rendered  against 
one  defendant  alone  in  the  Marine 
Court  in  cases  embraced  by  section 
136  of  the  Code,  although  that  sec- 
tion does  not  apply  to  the  Marine 
Court.  Bollard  v.  Lockwood,  188 


intermit  or  avoid  by  making  an  or- 
der for  a  new  trial.  Williams  v.  The 
Tradesmen's  Fire  Ins.  Co.,  437 

6.  An  appeal  from  such  a  judgment, 
when  entered,  brings  up  only  ques- 
tions of  law,  and  the  appellant  can- 
not be  heard  upon  the  objection  that 
the  verdict  was  contrary  to  evidence. 


7.  There  is  no  provision  of  law  allow- 
ing a  single  judge  of  the  Marine 
Court  to  hear  a  motion  for  a  new 
trial,  or  providing  for  an  appeal  in 
that  Court  from  an  order  either 
granting  or  denying  such  a  motion. 


2.  The  Court  may  at  special  term  dis- 
miss an  appeal  from  the  general  term 
of  the  Marine  Court  for  irregularity. 
But  if  the  proceedings  are  regular, 
the  appeal  must  be  heard  at  the  gen- 
eral term,  even  upon  a  question  of 
jurisdiction.  WiUiams  v.  Tradesmen's 
Fire  Ins.  Co.,  322 

3.  The  Court  will  permit  an  amend- 
ment by  which  an  appeal  may  be 
perfected,  where  notice  of  appeal  has 
been  served..  ib. 

4.  By  section  354  of  the  Code,  the  no- 
tice of  an  appeal  from  the  General 
Term  of  the  Marine  Court,  must  be 
served  upon  the  respondent  person- 
ally, and  the  undertaking  for  costs 
must  be  executed  by  the  appellant 
himself.    But  where  it  appears  that 
the  appeal  was  taken  in  good  faith, 
and  notice  of  the  appeal  was  served 
upon  the  clerk  of  the  court  below, 
and  upon  the  attorney  who  appeared 
for  the  respondent  on  the  trial  be- 
low,— Held,  that  it  was  within  the 
discretion  of  this  Court  to  allow  the 
appellant  to  perfect  his  appeal,  and 
amend  his  proceedings  by  serving  a 
notice  of  appeal  upon  the  respondent 
personally,  and  executing  a  new  un- 
dertaking, ib. 

5.  It  is  the  duty  of  a  judge  of  the  Ma- 
rine Court  presiding  at  a  trial  by  a 
jury  to  give  judgment  upon  the  ver- 
dict ;  and  this  judgment  he  cannot 


The  reversal  of  a  judgment  upon 
the  ground  that  it  is  against  the 
weight  of  evidence,  and  an  order  for 
a  new  trial  by  the  General  Term  of 
the  Marine  Court,  constitute  a  final 
determination,  from  which  an  appeal 
may  be  taken  to  the  Common  Pleas. 

ib. 

9.  The  General  Term  of  the  Marine 
Court  has  the  same  power  as  the 
General  Term  of  the  Supreme  Court 
to  correct   the    entries  of  its  own 
judgments  and  decisions.    Harper  v. 
Hall,  498 

10.  On  a  motion   before  the   General 
Term  of  the  Marine  Court  to  dismiss 
an  appeal  thereto,  for  want  of  prose- 
cution, an  order  was  erroneously  en- 
tered affirming  the  judgment  appeal- 
ed from, — Held,  that    the    General 
Term  might,  on  motion,  correct  such 
order,  so  as  to  make  it  conform  to  the 
real  decision  of  the  CoXirt.  ib. 

11.  An  order  of  the  General  Term  of 
the  Marine  Court  dismissing  an  ap- 
peal thereto  for  want  of  prosecution, 
is  not  a  final    determination,  from 
which  an  appeal  can  be  taken  to  the 
Common  Pleas.  ib. 

MARRIED    WOMAN. 

1.  A  married  woman  who  hires  prem- 
ises in  her  own  name,  has  an  inter- 
est therein  within  the  meaning  of 
Laws  of  1849,  chap.  375,  p.  528,  and 
may  maintain  an  action  for  a  tres- 
pass thereon  in  her  own  name.  Fox 
v.  Dnff,  196 

See  NEW  TRIAL,  2. 
PRACTICE,  1. 


INDEX. 


61! 


MASTER    AND    SERVANT. 

1.  A.  and  B,  separate  contractors,  con 
traded  with  the  Ward  School  officers 
in  the  city  of  New  York,  with  the 
consent  and  approval  of  the  Board 
of  Education,  to  build  a  brick  school- 
house  ;  A.  to  do  the  carpenter's  work 
and  B.  the  mason's  work.     By  the 
unskillful  manner  in  which  the  ma- 
son's work  was  done,  the  wall  fell  in 
before  the  building  was  completed, 
injuring   A.'s  work  and  subjecting 
him  to  loss  and  damage.    In  an  ac- 
tion brought  by  A.  against  the  city 
corporation  to  recover  for  the  negli- 
gence of  ~B.—Held,  1.  That  although 
the  defendants  were  the  owners  of  the 
school-house,  they  did  not  employ 
nor  had  they  a    right,    under  the 
school  laws,  to  employ,  B.,  and  they 
were  not,  therefore,  responsible  for 
his  negligence.    2.  The  principle  of 
respondeat  superior  is  not  applicable 
in  such  a  case.     Treadwett  v.    Tlie 
Mayor,  die.,  123 

2.  An  employer  is  not  liable  to  one  of 
his  agents  or  servants  for  the  negli- 
gence of  another  of  his  agents  or  ser- 
vants, unless  he  was  at  fault  in  the 
selection  of  the    agent  or  in  some 

,     other  respect.  ib. 

3.  In  the  prosecution  of  a  general  en- 
terprise, the  employer  does  not  war- 
rant to  each  person  who  engages  in 
the  enterprise  the    competency  of 
every  agent  employed,  and  cannot 
be  made   responsible,    unless   it    is 
shown  that  he  was  guilty  of  a  want 
of  care  in  the  selection  of  the  person 
through  whose  neglence  the  injury 
occurred ;    though  it  is    otherwise 
upon  grounds  of  public  policy  where 
the  relation  of  master  and  servant  or 
of  principal  and  agent  does  not  exist. 

ib. 


4  A  general  agent  or  clerk  employed 
to  make  sales  of  goods  and  require 
payment  therefor,  who  obtains  pay- 
ment of  filse  bills  by  fraud  or  deceit, 
— Held,  as  acting  within  the  scope  of  10 
his  employment,  and  his  principal  is 
liable  for  the  amount  thus  obtained  ; 
especially  where  there  is  some  evi- 
dence, however  slight,  that  the  agent 
paid  the  sum  thus  collected  to  his 
employer.  Adams  v.  Cole,  ^ 


6.  The  powers  exercised  by  the  city 
corporation  in  reference  to  the  Fin. 
Department,  are  conferred  and  em 


ployed  exclusively  for  the  public 
benefit,  and  the  corporation  cannot 
be  held  liable  as  a  master  for  the 
wrongful  acts  of  firemen.  O'Meara  v. 
The  Mayor,  &c.,  425 

6.  The  plaintiff,  while  standing  on  the 
sidewalk,  was  knocked  down  and 
run  over  by  a  fire  engine  in  the 
charge  of  firemen,  and  which  was 
running  upon  the  sidewalk  in  viola- 
tion of  a  city  ordinance, — Held,  that 
the  city  corporation  could  not  be 
held  liable  for  the  injuries  occasioned 
to  the  plaintiff  by  such  negligent  act. 
The  mere  fact  that  the  firemen  had  at 
the  time  an  engine  in  their  possession 
by  the  authority  of  the  Mayor  and 
Common  Council,  did  not  create  the 
relation  of  master  and  servant. 

ib. 

1.  In  an  action  by  a  servant  against 
his  master  to  recover  damages  lor  an 
injury  occasioned  in  the  course  of  his 
employment,  by  defective  or  unsuit- 
able machinery,  it  must  appear  that 
the  machinery  was  in  fact  defective, 
that  the  injury  was  occasioned  by 
such  defect,  and  that  the  defendant 
had  notice  of  it.  Kunz  v.  Stuart,  431 

8.  Where,  in  such  an  action,  the  plain- 
tiff's own  testimony  is  sufficient  to 
justify  a  presumption  that  the  acci- 
dent was  the  result  of  the  negligence 
of  a  fellow  workman  of  the  plaintiff, 
a  judgment  of  dismissal  will  not  be 
reversed  on  appeal.  ib. 

9.  Where  a  vessel   was  attached  to  a 
wharf  by  a  line  lying  for  most  of  its 
length  beneath  the  water,  and  at  such 
a  distance  from  the  wharf  as  to  leave 
ample  passage-way  between  it  ami 
the  wharf  for  vessels  to  pass  to  and 
fro,  but  no  person  was  on  deck  to 
loosen  the  line  or  warn  vessels  at- 
tempting to  pass, — Held,  negligence 
which  rendered  the   owners  liable 
for  any  damages  resulting  therefrom. 
Annett  v.  Foster,  502 


.  The  relation  of  master  and  ser- 
vant between  the  owner  and  mas- 
ter of  a  vessel,  and  the  liability  of 
the  former,  as  owner,  for  negligence 
in  its  manageme.it,  does  not  cease 
unless  the  owner  has  given  up  all 
control  of  the  vessel  and  of  her  em- 
ployment, and  all  imim-iliate  and  di- 
rect interest  in  the  freight  earned  by 
her.  Hence,  where  the  agreement 
between  the  owner  and  master  of  a 


611 


INDEX. 


vessel  was  that  the  former  should 
make  contracts  for,  and  receive,  the 
freight,  and  pay  wharfage,  and  the 
master  should  receive  a  share  of  the 
freight  money,  and  pay  all  other  ex- 
penses, and  be  allowed  to  select  the 
kind  of  employment  for  the  vessel, — 
Held,  that  this  was  not  such  a  sur- 
render of  control  as  to  make  the  mas- 
ter owner  pro  hoc  vice,  or  relieve  the 
owner  offiability  for  injuries  arising 
from  negligence  in  the  management 
of  the  vessel.  £>. 

11.  What  acts  will  divest  the  owner  of 
his  responsibility  for  the  manage- 
ment of  a  vessel, — considered.  ib. 

See  PRINCIPAL  AND  AGENT. 
MECHANIC'S    LIEN. 

1.  A  contractor  failed  to  complete  his 
contract,  and  the  owner  was  com- 
pelled to  complete  the  building.    In 
an  action  by  a  sub-contractor  against 
the  owner  for  work  and  materials, 
for  which  a  lien  had  been   filled, — 
Held,  that  the  defendant  might  prove 
on  the  trial  what,  it  had  actually  cost 
him  to  complete  the  building,  for  the 
purpose  of  showing  that  nothing  was 
due  to   the  contractor,  and,  conse- 
quently, nothing  due  to  the  plain- 
tiff, as  sub-contractor.    Smith  v.  Fer- 
ris, 

2.  In  an  action  brought  by  a  sub-contrac- 
tor to  enforce  a  lien  claimed  to  have 
been  acquired  under  the   mechanic's 
lien  law  of  1851,  it  must  appear  by 
the  complaint,    1.    That  labor  and 
materials  have  been  furnished  in  the 
erection  of  the  building,  in  conform- 
ity with  the  contract  made  by  the 
original  contractor  with  the  owner. 

2.  That  within  six  months  thereafter, 
a  notice  in  writing,  under  the  sixth 
section  of  the  act,  claiming  a  lien  for 
work  or  materials  thus    furnished, 
was  filed    with  the    county    clerk. 

3.  That  at  the  time  of  filing  the 
notice  of  lien,  or  subsequently,  a  pay- 
ment was  due  or  has  since  become 
due  from  the  owner  to  the  contractor 
upon  the  original  contract.    4.    That 
the  contracting  owner  had  some  in- 
terest in  the  property  at  the  time  the 
notice  claiming  the  lien  was  filed. 
Bailey  v.  Johnson,  61 

3.  Where,  in  an  action  to  enforce  a 
mechanic's  lien,  the  complaint  fails 
in  any  of  the  foregoing  requisites,  a 


motion  to  dismiss  at  the  trial  is  pro- 
per, and  will  be  granted.  t&. 

A  bona-fide  purchaser  of  the  prem- 
ises before  the  filing  of  notice  of  the 
lien,  cannot  be  "  chargeable"  with 
such  notice.  if). 

Where  a  sub-contractor  is  prevented 
from  performing  the  whole  of  his 
contract  with  the  contractor  b>  rea- 
son of  the  failure  of  the  latter,  and 
an  assignment  by  him  of  the  contract 
for  the  benefit  of  his  creditors, — Held, 
that  he  may  acquire  and  enforce  a 
lien  for  the  value  of  his  labor  and 
materials  performed  and  furnished 
up  to  the  time  when  he  was  pre- 
vented. Henderson  v.  Sturgis,  336 

6.  Although  at  the  time  the  sub-con- 
tractor filed  his  lien  there  was  nothing 
due  to  the  contractor,  yet  the  latter 
having  made  an  assignment  with 
the  consent  of  the  owner,  who  de- 
tained from  the  contract  price  the 
amount  of  the  lien,  and  the  sub-con- 
tractor having,  under  an  agreement 
with  the  assignee,  completed  his 
work,  as  contemplated  by  the  orig- 
inal contract, — Held,  that  the  equities 
are  with  the  sub-contractor,  and  a 
court  of  equity  will  apply  the  sum 
so  detained  hi  satisfaction  of  his  lien. 


7.  Where,  prior  to  the  filing  of  a  notice 
claiming  a  mechanic's  lien  by  a  sub- 
contractor, the  contractor  in  good 
faith  and  for  a  full  consideration, 
transferred  to  a  purchaser  the  right 
which  he  might  thereafter  acquire 
to  any  payments  under  the  contract, 
— Held  that  the  purchaser  succeeded 
to  the  rights  of  the  contractor  upon 
the  contract,  and  that  as  against  such 
purchaser,  the  sub-contractor,  who 
knew,  at  the  time  of  the  making  of 
his  contract,  of  the  existence  of  the 
assignment,  acquired  no  lien.     Oates 
v.  Haley,  338 

8.  The  only  exception  to  the  rule  that 
the  sub-contractor  can  acquire    no 
lien,    where    at  the  time  of  filing 
the  notice  there  is  nothing  due  to 
the  contractor,     is    the  case  of  an 
assignment  by  the  contractor  of  his 
property  in  trust  for  the  benefit  of 
his  creditors.  ib. 

9.  No  lien  attaches  by  the  mere  perfor- 
mance of  work  pursuant  to  the  con- 
tract, but  it  is  gained  only  by  filing 


INDEX. 


615 


the  notice  prescribed  by  the  statute, 
and  until  that  notice  is  filed,  the 
coutractor,while  acting  in  good  faith, 
may  deal  with  and  dispose  of  the  in- 
debtedness which  may  accrue  to  him 
under  the  contract,  as  he  may  by 
law  with  any  other  maturing  indebt- 
edness, ib. 

10.  A  minister    plenipotentiary    of  a 
foreign  power  is  not  exempt  from 
the  application  of    the  mechanic's 
lien    law    of  this  State,  as  to  any 
house  or  building  which  is  not  used 
as  a  mansion  for  purposes  connected 
with  his  representative    character ; 
and  where  exemption  is  claimed,  it 
must  appear  by  the  proof  that  he  is 
entitled  to  a  suspension   of  the  rule 
that  the  lex  rei  site  controls.     Byrne 
v.  Herran,  344 

11.  Where,  therefore,  on  a  motion  for 
an  order  to  join  issue  on  the  merits, 
hi  a  proceeding  to  foreclose  a  me- 
chanic's lien,  it  does  not  appear  that 
the  building  was  erected  by  tbe  de- 
fendant   for  his  residence  as  such 
minister, — Held,  that  the  motion  of 
joining  of  issue  should  be  granted. 

ib. 

12.  Where  the  notice  of  lien  under  the 
mechanic's  lien  law  stated  that  the 
materials    were    furnished   in   pur- 
suance of  a  written  contract, — Held, 
that  extra  materials  which  became 
necessary  in  consequence  of  defects 
in  the  spepifications  of  the  written 
contract  were  covered  by  the  notice. 
McAuley  v.  Mildrum,  396 

13.  A  conveyance  of  premises  by  the 
owner  and  builder  made  before  the 
filing  of  the  notice  of  a  mechanic's 
lien,  but  which,  by  an  instrument 
executed  subsequently  to  such  filing, 
is  shown  to  have  been  intended  only 
as  a  mortgage,  does  not  prevent  the 
lien  from  attaching  upon   the  equit- 
able interest  of  the  owner  at  the  date 
of  such  filing.  ib 

14.  A  mechanic's  lien  upon  a  building 
covers  only  the  materials  and  work 
employed  on  the  building  referred 
to  in  the  notice.  ib. 


tbe  5 


15.  Where  under  a  single  contract,  the 
lienor  had  furnished  materials  to 
owner  equally  for  seven  houses,  and 
one  of  such  houses  had  been  con- 
veyed away  by  the  owner  before  the 
filing*  of  the  notice  of  lieu, — UeU, 


that  the  lien  was  valid  as  a  lien  upon 
the  remaining  six  houses,  only  for 
their  proportionate  part  of  the  whole 
claim  (sjx- sevenths),  although  some 
payments  had  been  made  by  the 
owner  on  general  account.  \b. 

See  COSTS,  1. 
ESTOPPEL,  2. 
EVIDENCE,  18. 

MORTGAGE    OF    CHATTELS. 
See  CHATTEL  MORTGAGE. 


NATURALIZATION. 

1.  A    man's    residence  is  that    place 
where  his  family  dwells,  or  which 
he  makes  the  chief  seat  of  his  affairs 
and  interests.  Matter  of  Hawley,  531 

2.  Before  an  alien  can  be  naturalized 
he  must  have  resided  in  the  United 
States  for  five  jrears  next  preceding 
the  time  when  he  applies  to  be  ad- 
mitted a  citizen.    The  repealing  act 
of  June  26,  1848,  has  not  abrogated 
this  provision.  ib. 

3.  An  alien  came  tf>  this  country  when 
he  was  of  the  age  of  thirteen,  and  re- 
sided here  till  he  was  twenty-three 
years  of  age,  when  he  returned  to 
Ireland,  the  place  of  his  birth,  and 
where  his  parents  resided,  for  the 
purpose  of  seeing  his  father,  who 
was  ill,  but  remained   there  seven 
years,  during  which  time  he  followed 
his  calling  as  a  mechanic, — Held,   he 
had  lost  his  residence  in  this  country 
though  he  may  have  intended  to  re- 
turn and  live  in  this  country,  and  so 
expressed  himself  to  his  friends  when 
leaving,  and  had  declared  his  inten- 
tion  to   become    a    citizen    in    the 
manner  required  by  law.  ib. 

4.  The  residence  of  a  seaman,  if  married 
is  the  place  where  his  family  dwells 
or  if  he  has  never  been  married,  the 
place  where  his  domicil  was  fixed 
when  he  first  went  to  sea  as  a  mar- 
iner.   Matter  of  Swtt,  534. 


5.  S.,  an  alien,  came  to  this  country 
with  his  parents  when  he  was  three 
years  of  ane,  and  lived  with  them  in 
the  city  of  New  York,  until  their 
death,  when  he  shipped  from  the 


616 


INDEX. 


port  of  New  York  as  a  mariner,  in 
an  American  vessel,  and  for  seven 
years  thereafter  he  was  employed 
exclusively  and  continuously  as  a 
seaman  in  the  merchant  service  of 
the  United  States, — Held,  that  he  was 
to  be  deemed  a  resident  of  the  United 
States,  and  of  the  State  of  New  York, 
during  that  time,  and  was  entitled  to 
be  naturalized. 

NEGLIGENCE . 

1.  In    determining    what    would    or 
would  not  be  negligence  on  the  part 
of  a  child,  six  years  of  age,  it  is  not  to 
be  understood  that  a  child  of  that  age 

is  to  be  held  to  the  same  degree  of 
caution,  foresight  and  discretion  that 
would  be  exacted  from  an  adult. 
Honegsberger  v.  The  Second  Ave.  R.  R. 
O>.,  89 

2.  If  a  child  exercises  the  caution  of 
one  of  its  years,  that  is  all  that  can 
be  required  of  it.    More  would  be 
impossible,  and  the  law  does  not  ex- 
act an  impossibility. 

3.  A  request  to  charge  that  it  is  negli- 
gence on   the  part  of  a  parent  to 
allow  a  child  six  years  old   to  go 
alone  in  the  streets, — Held,  properly 
refused.  ib. 

4.  The  defendant's  ground  was  higher 
than  the  plaintiffs,  and  its  natural 
slope  was  such,  that  the  water  rising 
from  natural  springs  beyond,  follow- 
ing   the    declivity  of   the    ground, 
flowed  into,  and  collected  in  a  hol- 
low on  defendant's  lot,  directly  ad- 
joining the  plaintiffs  house.    At  the 
time  plaintiff  purchased  his  lot  there 
was  a  drain  and  culvert,  which  car- 
ried this  water  off  from  the  defend- 
ant's lot,  -but  which,  before  the  com- 
mencement of  this  suit,   had  been 
cut  off  and  filled  up  by  owners  of 
lots  through  which  it  had  flowed. 
The  water  was  thus  thrown  back 
upon  the  defendant's  lot,  and  from 
thence  flowed  into  the  plaintiffs  lot, 
Directly    adjoining     the    plaintiff's 
house,  and  over  it  "or  close  to  it,  the 
defendant  had  built  a  lumber  shed, 
the  roof  of  which  pitched  towards 
the  plaintiffs   house,    from    which, 
when  it  rained,  the  water  ran  in  the 
direction  of  the  plaintiff's  building. 
The  plaintiff,  on  his  part,  had  erect- 
ed wood  sheds  along  the  line  of  his 
own  and  defendant's  lot,  the  roofs  of  7 
which  pitched  towards  the  defend- 


ant's lot,  and  the  water  which  fell 
upon  them  when  it  rained  was  pre- 
cipitated upon  the  defendant's  lot. 
The  water  thus  collected  by  the  nat- 
ural declivity  of  the  ground  and  the 
cutting  off  of  the  water-course  or 
drain,  and  by  the  roofs  erected  by 
both  the  plaintiff  and  the  defendant, 
flowed  into  the  plaintiffs  lot,  and 
frequently  submerged  the  basement 
of  his  house,  and  washed  away  parts 
of  its  foundation, — Held,  1.  That,  al- 
though the  defendant  could  not  be 
held  answerable  for  the  effect  pro- 
duced by  water  flowing  over  b\s 
ground  towards  the  plaintiffs  lot,  in 
consequence  of  the  natural  forma- 
tion of  the  soil ;  yet,  it  appearing 
that  the  body  of  water  on  defendant's 
lot  was  greatly  increased  by  the  law- 
ful cutting  off  of  the  drain  and  cul- 
vert, and  the  filling  in  of  adjacent 
sunken  lots  by  their  owners,  obliga- 
tions were  imposed  upon  the  defeiid- 
ant  in  respect  to  his  own  lot,  which, 
but  for  other  causes,  would  not  have 
existed,  and  Ire  was  bound  to  adopt 
reasonable  means  to  prevent  the  wa- 
ter from  collecting  and  remaining  on 
his  premises.  2.  The  fact  that  the 
pitch  of  the  plaintiff's  roofs  tended  to 
augment  the  body  of  water  which 
did  the  injury,  does  not  deprive  him 
of  all  right  of  action  for  the  injury 
he  sustained  by  reason  of  the  defend- 
ant's erection.  Thomas  v.  Kenyan,  Iij2 

.  The  mutual  or  co-operating  negli- 
gence which  deprives  one  party  of 
any  right  of  action  against  the  other, 
is  where  the  act  which  produced  the 
injury  would  not  have  occurred  but 
for  the  combined  negligence  of  both. 

ib. 

.  Where  the  effect  of  the  negligence  of 
one  party  is  to  produce  injury  to  a 
certain  extent  in  any  event ;  that  is, 
if  its  effect  is  to  produce  a  certain 
amount  of  inj  ury,  even  if  the  other 
party  had  been  guilty  of  no  negli- 
gence at  all,  then,  though  the  negli- 
gence of  the  other  party  may  have 
rendered  the  loss  or  injury  greater 
than  it  would  otherwise  have  been, 
still  they  are  not  the  joint  authors  of 
all  that  has  taken  place;  srvl  it  is 
possible  to  distinguish  the  amount 
of  injury  caused  by  the  negligence 
of  the  one,  from  the  amouni  of  inju- 
ry caused  by  the  negligence  of  the 
other.  ib. 

.  And  in  such  a  case,  the  jury  have  a 
right  to  discriminate,  and  to  hold  a 


IXDEX. 


617 


defendant  responsible  for  damages 
arising  from  causes  with  which  the 
plaintiff  had  no  agency. 

8.  A  railroad  company  having  under- 
taken to  lay  down  a  rail  track  along 
a  street  which  is  a  public  road,  are 
bound  to  lay  it  down  properly,  and 
to  keep  it  in  a    proper    condition 
thereafter.     It  is  a  question  for  the 
jury  to  determine  whether  they  have 
done  so  or  not.    Fash  v.   Third  Ave. 
R.  R.  Co.,  148 

9.  And  where,  by  the  sinking  of  the 
pavement,  a  spike  in  the  rail  was  left 
exposed,  with  which  the  plaintiffs 
carriage  coming  in  contact,  the  plain- 
tiff was  thrown  out  and   injured, — 
Held,  that  the  company  was  guilty  of 
negligence,  and  the  plaintiff  might 
recover.  ib. 

10.  It  is  wholly  immaterial  whether 
the  projection  of  the  spike  resulted 
from  the  failure  of  the  city  corpora- 
tion to  repair  the  street  in  the  local- 
ity of  the  accident.    The  injury  to 
plaintiff  resulted  from   the  defend- 
ants permitting  the  spike  to  project. 

ib. 

11.  Held,  therefore,  that  the  judge  pro- 
perly refused  to  charge  the  jury  that 
if  the  defect  in  the  track  was  owing 
to  the  condition  of  the  streets,  or  of 
the  gutters  alongside,  the  plaintiff 
could  not  recover.  ib. 

12.  A  refusal  to  charge  the  jury  that  if 
the  rest  of  the  avenue  was  open  and 
fit  for  plaintiff's  wagon,  he  could  not 
recover  for  the  defective  condition  in 
the  pavement,— Held,  proper.         ib. 

13.  A  party  in  the  actual  possession  of 
a  city  pier  is  responsible  in  damages 
for  injuries  arising  from  its  bad  con- 
dition, irrespective  of  the  question 
of  ownership ;  and  in  suits  for  such 
damages,  the  possession  of  the  de- 
fendant being  shown,  the  question 
of  title  does  not  arise.    Cannavan  v. 
ConWn,  509 

14.  An  agreement  between  A.  and  B., 
joint  possessors  of  a  pier,  that  B. 
shall  keep  it  in  good  repair,  is  no  de- 
fence to  an  action  against   A.  by  a 
third  party,  to  recover  damages  for 
an  injury  arising  from  its  defective 
condition.  ib. 

15.  The  owners  of  a  pier  in  the  city  of 
New  York  leased  it  to  a  third  party, 


who  agreed  to  keep  it  in  as  good  re- 
pair us  it  then  was,  reserving  to 
themselves  a  right  to  use  and  occupy 
as  much  of  the  pier  as  their  business 
might  require  ;  and  under  this  agree- 
ment continued  to  use  the  dock, — 
Held,  that  this  was  a  joint  posses- 
sion, rendering  them  jointly  liable 
with  their  lessee,  for  the  death  of  a 
horse  caused  by  the  defective  condi- 
tion of  the  pier.  ib. 

See  INNKEEPER,  1,  2. 
CARRIERS, 

LANDLORD  AND  TENANT,  11. 
MASTER  AND  SERVANT,  7, 
8,  9,  10,  11. 

NEW  TRIAL. 

.  Although  a  new  trial  will  not  be 
granted  on  evidence  merely  contra- 
dicting the  testimony  on  which  the 
verdict  proceeded,  discovered  subse- 
quent to  the  trial,  yet  where  the 
facts,  on  which  the  witnesses  for  the 
prevailing  party  founded  themselves 
are  falsified  by  the  affidavits  pro- 
duced on  the  motion,  it  affords  a 
sufficient  ground  tor  ordering  a  new 
trial.  Wehrkamp  v.  Willet,  4 

.  In  an  action  by  a  married  woman 
against  the  sheriff  for  taking  certain 
personal  property,  claimed  by  her  to 
be  her  separate  estate,  upon  a  judg- 
ment and  execution  against  her  hus- 
band— Held,  that  her  testimony  on 
the  trial  tending  to  show  her  ability 
to  purchase  the  property  claimed, 
with  moneys  of  her  own,  and  inde- 
pendent ofher  husband,  was  mater- 
ial to  the  issue.  ib. 

,  And  where  it  is  shown  beyond  dis- 
pute, by  affidavit,  on  a  motion  for 
a  new  trial,  that  her  testimony  on 
that  point  was  false, — Held,  sufficient 
ground  for  granting  a  new  trial,  ib. 

See  DISTRICT  COURT  PRACTICE,  3. 
MARINE  COURT,  7,  8. 

NEW  YORK  CITY. 

.  A  contract  by  the  Si  reel  Commis- 
sioner, without  the  authority  of  the 
Common  Council,  according  to  §  12 
of  the  Charter  of  1853,  for  the  con- 
struction of  a  stone  wall  along  the 
sides  of  a  street,  to  protect  the  em- 
bankment, is  in  contravention  of  the  . 
statute,  if  the  whole  work  involves 
an  expenditure  of  over  §250.  E&i*  v. 
Tite  Mayor,  etc.,  IOC 


618 


INDEX. 


2.  The  fact  that  the  wall  thus  built  was 
in  four  detached  pieces,  at  wide  in- 
tervals apart,  for  each  piece  of  which 
the  expense  was  less  than  $250,  will 
not  take  the  case  out  of  the  prohibi- 
tion of  §  12,  it  appearing  that  the 
wall  was  directed  to  be  done  at  the 

'same  time,  and  was  a  continuous 
work.  It  must  be  regarded  as  falling 
within  a  single  contract  or  direction 
of  the  Street  Commissioner,  and  is 
therefore  within  the  prohibition,  ib. 
• 

3.  The  Street  Commissioner,  in  order 
to    protect   a    street    embankment 
which  was  being  built  under  his  di- 
rection, ordered   two  basins  to   be 
built  to  carry  the  water  from  the 
surface  of  the  street  into  the  sewer, 
— Held,  that  he  had  no  authority  to 
make  any  contract  for  the  building 
of  such  "basin,  and  the  contractor 
therefore  could  not  recover.  ib.\ 

4.  The  Street  Commissioner  has  cogni- 
zance of  only  that  part  of  the  street 
improvements  which  consist  in  their 
opening,     regulating,    and    paving, 
(Charter  of  1842,  §  12).      The    con- 
struction of  basins  connected  with 
the  sewers,  and  forming  part  of  the 
means  by   which  the  underground 
drainage  of  the  city  is  effected,  is  ex- 
clusively  within  the  duties  of  the 
Croton  Aqueduct  Board.  Charter  of 
1849,  §  15.  ib. 


5.  The  Street,  Commissioner,  though  in 
some  respects  he  may  be  regarded 
as  the  agent  of  the  Corporation,  is 
not,  however,  such  an  agent  as  can 
bind  his  principal,  generally.     He  is 
an  independent  public  officer,  acting 
under    special    statutory  authority, 
but  controlled  by  the  Corporation 
ordinances ;  and  therefore  like  one 
acting    under    special    instructions, 
from  which  he  cannot  depart,  and  ot 
which  parties  dealing  with  him  are 
presumed,  and  bound,  to  have  know- 
ledge.     He  cannot  bind  the  Corpor- 
ation except  in  respect  to  those  acts 
which  fall  within  his  limited  duties 
and  authority.  ib. 

6.  The  harbor  masters  of  the  city  of 
New  York  have  full  power  to  sta- 
tion  and  regulate    vessels    in    the 
streams  of  the  North  and  East  Riv- 
ers, and  also  within  the  wharves  of 
the  city  of  New  York.     The  Mayor. 
etc.  v.  Tucker,  107 

7.  The  office  of  dock  master,  under  the 


Corporation  ordinance  of  1839,  ch. 
84,  was  superseded  by  the  various 
acts  of  the  legislature  creating  and 
regulating  the  office  of  harbor  mas- 
ters, ib. 

The  act  of  1853,  "  in  relation  to  the 
police  department  of  the  city  of  New 
York,"  (Laws  of  1853,  p.  441),  has 
been  entirely  abrogated  by  the  me- 
tropolitan police  act  of  1857 ;  and  the 
provisions  of  section  6  of  the  former 
act,  declaring  the  captains  of  police 
to  be  dock  masters  within  their  res- 
pective limits,  do  not  therefore  con- 
fer on  captains  of  police  any  author- 
ity to  act  as  such ;  nor  have  the  po- 
lice commissioners  any  power  under 
the  latter  act  to  confer  upon  police- 
men any  authority  as  dock  masters. 


9.  The  City  inspector  of  the  city  of 
.   New  York,  being  authorized  by  a 

resolution  of  the  Board  of  Health  to 
employ  the  plaintiff's  assignor  *'  to 
remove  temporarily,  or  until  further 
'  ordered  by  the  Board  or  Common 
Council,  all  the  contents  of  the  sinks 
and  privies  of  the  city  beyond  the 
harbor,"  made  a  contract  according- 
ly, fixing  the  rate  of  compensation, 
as  directed  by  the  resolution,  at  fifty 
dollars  per  week  for  the  first  six 
mouths,  and  forty  dollars  per  week 
for  the  time  after  that  period — Held, 
That  such  contract  was  within  the 
power  conferred  on  the  Board  of 
Health  by  section  6  of  the  act  of 
1850,  ch.  275,  title  3,  and  section  27 
of  the  act  of  1857, 'ch.  446  ;  and  the 
Corporation  was  chargeable  with  the 
expenses  arising  from  the  employ- 
ment of  the  plaintiff's  assignor. 

Heldfurflier,  That  it  being  compe- 
tent, by  the  terms  of  the  contract, 
for  the  defendants  or  the  Board  of 
Health  to  terminate  it  at  any  mo- 
ment, it  could  not  be  deemed  a  con- 
tinuing contract,  or  as  invading  the 
powers  of  the  Common  Council  as 
prescribed  by  the  charter,  to  make 
contracts  for  the  same  work. 

Held  furtficr,  That  such  contract 
was  not  in  violation  of  section  38  of 
the  charter  of  1857,  requiring  all 
contracts  involving  an  expenditure 
of. over  $250  to  be  founded  upon 
sealed  bids  and  proposals. 

10.  It  seems,    that    the  provfsions  of 
section  38  of  the  charter  of  1857  ap- 
ply only  to  contracts  to  be  let  by  au- 
thority of  the  Common  Council,  and 


IKDEX. 


619 


were  never  intended  to  apply  to  the 
Board  of  Health.  McLaren  v.  Mayor, 
etc.  ofN.  T.,  243 

11.  The  Courts  have  no  power,  in  col- 
lateral proceedings,  to  inquire  whe- 
ther the  facts  upon  which  a  Board  of 
Health  determines  a  thing  to  be  a 
nuisance  justify  its  conclusion.       ib. 

12.  A  dwelling  house  is  one  designed 
to  be  occupied  as  a  place  of  abode  by 
night  as  well  as  by  day,  and  which 
is  constructed  with  special  reference 
to  that  object,  and  as  long   as  it  is 
capable  of  being  so  used  in  whole  or 
in  part,  it  retains  its  specific  charac- 
ter. Fire  Department  v.  Buhler,    891 

13.  A  building  erected  for  a  store  or  a 
warehouse  does  not  become  a  dwell- 
ing house,  though  a  place  may  be 
fitted  up  in  it  for  a  person  to  sleep 
in  ;  nor  does  one  originally  erected 
for  a  dwelling  house  cease  to  be  such 
though  a  part  of  it  has  been  convert- 
ed into  a  score.    ' 

14.  A  building,  therefore,  which  was 
originally  constructed  as  a  dwelling 
house,  and  was  occupied  as  such, 
though  subsequently  used  in  part  as 
"  a  store,"  the  attic  being  used  by 
the  clerks  as  a  sleeping  apartment, 
and  in  the  basement  of  which  there 
was  ja   bed-room, — Held,    to    be  a 
"  dwelling  house,"  within  the  mean- 
ing of  sections  14  and  20  of  the  Fire 
Laws   of  the   City  of    New  York 
(Laws  of  1849,  ch.  84,  p.   121) ;   the 
roof  of  which  might  be  raised  and 
made   flat    without    subjecting  the 
owner  to  the  penalty  prescribed  in 
the  statute. 

15.  The  members  of  the  Fire  Depart- 
ment of  the  city  of  New  York  owe 
their  allegiance  to  the  city,  not  as 
members  of  a  corporation,  but  as 
members  of  an  organization  identi- 
fied with  the  administration  of  the 
city  government,  and  forming  a  part 
of  its  protective  police.      O'Meara  v. 
The  Mayor,  etc.,  425 

See  MASTER  AND  SERVANT,  5,  6. 
PILOTS, 

NUISANCE. 
1  See  NEW  YORK  CITY. 


0 


OFFICERS. 

,  The  authority  of  those  who  hold 
public  offices  under  color  of  legal 
title  cannot  be  disputed  in  a  collat- 
eral proceeding.  It  can  only  be 
questioned  in  an  action  brought  by 
the  attorney  general  in  the  name  of 
the  people  of  the  State.  Code,  §  438. 
Tht  Mayor  etc.  v.  Tucker,  107 

.  One  who  is  appointed  to  a  munici- 
pal office,  but  who  is  unlawfully  ex- 
cluded therefrom  by  a  third  person, 
who  alone  performs  the  duties  of  the 
office,  cannot  recover  the  compensa- 
tion allowed  by  law  for  such  services 
without  at  least  showing  that  he  has 
taken  every  proper  legal  measure  to 
obtain  possession  of  the  office.  Smith 
v.  The  Mayor,  etc.,  219 


PARTIES  TO  ACTION. 

.  In  an  action  against  the  owners  of  a 
vessel  for  supplies  furnished  her, 
where  only  one  of  the  defendants  is 
served,  and  it  does  not  appear  by  the 
evidence  that  the  other  defendants 
are  part  owners — Held,  that  there 
was  a  clear  misjoinder  of  parties  de- 
fendant, which  the  defendant  served 
was  entitled  to  take  advantage  of  at 
the  trial,  and  his  motion  for  a  non- 
suit should  have  been  granted.  Sager 
v.  Nichols, 

2.  The  plaintiff  was  arrested  and  im- 
prisoned at  the  instance  of  the  de- 
fendant L.  on  the  charge  of  embez- 
zlement. On  the  examination  before 
the  police  justice,  tbe  plaintiff  was 
discharged  on  the  ground  that  tbe 
money  alleged  to  have  been  embez- 
zled by  him'  was  not  the  property  of 
L.  but  of  his  wife.  The  defendant  L. 
went  for  hia  wife,  who  appeared  and 
made  her  complaint,  and  the  plain- 
tiff was  detained  until  he  procured 
bail, — Held,  in  an  action  for  the  last 
arrest,  that  the  wife  being  proved  to 
have  acted  voluntarily  and  without 
the  coercion  of  her  husband,  the  hus- 
band and  wife  were  properly  joined 
as  parties  defendant.  Cattsin  v.  De- 
laney, 


C20 


3.  Held,  furtfier,  that  the  damages  aris- 
ing from  the  first  arrest  ought  not  to 
be^bleuded  with  those  of  the  second 
arrest,  and  the  referee  having  evi- 
dently done  so,  the  Court,  on  appeal, 
will  reduce  the  amount  of  the  judg- 
ment, or  reverse  it.  to. 

4.  A  plaintiff  cannot  anticipate  that  a 
person,  jointly  liable  with  the  defen- 
dant, would  avail  himself,  if  made  a 
party  to  the  suit,  of  the  defence  of 
the  statute  of  limitations,  an,d    on 
that  ground  omit  to  make  such  per- 
son a  party  defendant.  Hyde  v.  Van 
Valkenbur'gh,  416 

5.  To  justify  the  omission  of  a  person 
as  a  party  defendant  La  an  action 
against  a  co-partner  on  a  partnership 
obligation,  it  must  appear  by  aver- 
ments in  the  complaint,  which  lead 
to  no  other  conclusion,  that  the  legal 
obligation  of  such  person  had  abso- 
lutely ceased.  ib. 

See  MARRIED  WOMAN. 

PRINCIPAL  AND  AGENT,  6. 

PARTNERSHIP. 

1.  A  communion  of  loss  as  well  as  of 
profits  is  essential  to  the  existence  of 
a  co-partnership,  and  in  a  case  where 
two  parties  were  to  share  equally  in 
the  profits  of  an  enterprise,  but  the 
expenses  were  to  be  borne  wholly  by 
one,  and  there  could,  in  no  event,  be 
any  risk  of  loss  on  the  part  of  the 
other, — Held,  that  they  were  not  part- 
ners inter  se.  Cummings  v.  Mills,  520 

See  PARTIES  TO  ACTIONS,  5. 
PAYMEN* 

1.  A   creditor   is   entitled    to    apply 
money    received  by  him  to  either 
or  any  of  the  separate  debts  due  to 
him  from  th«  person  making  the 
payment.    Smith  v.  Applegate,        91 

2.  The  acceptance  of  a'  note  or  bill 
made  by  a  third  person,  on  a  prece- 
dent debt,  affords  no  presumption  in 
favor  of  the  debtor,  but  leaves  the 
onus  of  proving  that  it  was  taken  in 
absolute  payment  upon  him.          ib. 

3.  But  the  acceptance  of  such  a  secu- 
rity suspends  the  creditor's  right  to 
sue  upon  his  original  claim,  until 
the  maturity  of  such  security.        ib. 


PILOTS. 

1.  The  "  act  concerning  the  pilots  of 
the  channel  of  the  East  River  com- 
monly called  Hell  Gate,"  passed 
April  16th,  1847  (2  Rev.  Stat.,  5th 
ed.,  428), — Held,  constitutional  and 
valid.  SdUicell  v.  Raynor,  47 

,  The  clause  in  the  Federal  Constitu- 
tion, conferring  upon  Congress  the 
power  "  to  regulate  commerce  with 
foreign  nations,  and  among  the  sev- 
eral States  "  (art.  1,  §  8,  subd.  3),  does 
not  deprive  the  several  States  of 
power  to  legislate  upon  the  subject 
of  pilots.  t'6. 

The  statute  (2  Rev.  Stat,,  5th  ed.,  43'), 
§  57),  requiring  masters  of  certain 
vessels  coming  into  the  port  of  New 
York,  to  accept  the  services  of  a 
licensed  pilot  first  offering  his  servi- 
ces, and  imposing  a  penalty  in  case 
of  refusal,  cannot  control  or  affect 
the  master  of  a  vessel  prior  to  his  ar- 
rival within  the  territorial  jurisdic- 
tion of  the  State.  Peterson  \.  Walsh, 

182 

,  A  pilot,  therefore,  who  spoke  a  ves- 
sel three  hundred  miles  at  sea,  and 
tendered  his  services,  which  were 
refused,  cannot  recover  pilotage  fees 
under  the  statute  authorizing  such 
actions.  ••  ib. 

5.  The  right  to  recover  the  penalty 
given  under  the  pilot  act  of  1853,  as 
amended  1854,  ch.  243  (A  Rev.  Stat. 
5th  ed.,  434,  §  57),  for  the  refusal  of 
the  master  of  a  vessel  to  accept  the 
services  of  the  pilot  first  offering,  is 
confined  to  those  pilots  who  have 
been  duly  licensed,  as  in  the  act  pre- 
scribed,— Held,  therefore,  that  a  pi- 
lot not  licensed  by  the  Board  of  Com- 
missioners of  Pilots,  under  the  laws 
of  this  State,  although  licensed  un- 
der the  statute  of  the  State  of  New 
Jersey,  and.  authorized  by  the  act  of 
Congress  (Dunlap's  Laws,  U.  S.,  924), 
to  pilot  vessels  coming  in  or  going 
out  of  the  port  of  New  York,  cannot 
sue  for  the  pilotage  fees  allowed  by 
the  pilot  laws  of  this  State,  on  the 
refusal  of  the  master  of  a  vessel  to 
employ  him.  Hopkins  v.  Wyckof, 

176 

PLEADING. 

The  complaint  averred  a  fraudulent 
agreement  between  the  defendants  L. 


INDEX. 


621 


composing  a  co-partnership,  and  G., 
to  obtain  goods  on  G.'s  credit,  on  re- 
presentations made  by  L.  of  G.'s  sol- 
vency and  good  standing ;  and  al- 
leged that  the  representations  of  L.(| 
to  the  plaintiffs,  and  the  purchase 
made  of  the  plaintiff's  by  G.,  on  such] 
representations,  "  were  made  in  pur- 
suance of  such  fraudulent  agreement, 
and  were  a  device  and  contrivance" 
between  L.  and  G.,  to  obtain  the 
goods  of  the  plaintiffs, — Held,  on  an 
appeal  from  judgment  after  verdict, 
that  the  complaint  was  sufficient. 

1.  It  matters  not  what  the  claim 
is  termed  in  the  complaint,  or  what 
word  is  employed  by  the  defendant 
to  express  the  legal  effect  or  result  of 
the  acts  alleged.    It  is  enough  that 
they  form  the  basis  of  a  demand. 

2.  Nor  is  it  necessary  to  aver  that 
the   representations    on  which    the 
plaintiffs  parted    with  their  goods 
were  false.    It  is  sufficient  to  allege 
that  they  were  made  by  the  defend- 
ants, well  knowing  the  truth  to  be 
the  converse.    Bollard  v.  Lockwood, 

158 

2.  A    complaint    is    "  duly  verified " 
within  §  4  of  the  act  of  1857,  in  rela- 
tion to  the  Marine  Court,  if  made  by 
one  of  several  plaintiffs,  united  in  in- 
terest.   It  is  not  necessary  to  state 
that    the    person  making  it  is  ac- 
quainted with  the  facts.  ib, 

3.  "Where,  on  a  motion  to  strike  out  as 
sham  a  defence  good  on  its  face,  ad- 
missions on  the  part  of  the  plaintiff 
are  positively  sworn  to,  which  are 
neither    contradicted,    qualified    or 
questioned,  and  which  tend  to  sustain 
the  defence, — Held,  that  the  motion 
will  be  denied.  Hodden  v.  N.  T.  Silk 
Manufacturing  Co.,  388. 

4.  Sham  pleading  is  the  setting  up  of  a 
defence  which  has  not  only  no  foun- 
dation of  fact,  but  which,  it  is  mani- 
fest, was  interposed  for  vexation  or 
delay.    Hodden  v.  N.  T.  Silk  Manu- 
facturing Go., 

5.  An  answer  will  not  be  adjudged  to 
be  sham  simply  upon  an  affidavit 
that  it  is  false,  for  this  would  be  try- 
ing the  merits  of  the  defence  upon  af- 
fidavits.   But  the  Court  must  be  sat- 
isfied   from    an    inspection  of    the 
pleading,    or    from    circumstances 
brought  to  its  knowledge,  that  the 
object  of  the  pleader  was  either  to 
delay  or  annoy  the  plaintiff,  or  else 
to  trifle  with  the  Court  by  way  of 


amusement,  by  getting  it  to  pass  up- 
on legal  quibbles,  or  engage  in  a  fu- 
tile investigation.  ib. 

.  Section  6  of  the  Laws  of  1860,  ch. 
379,  requiring  the  plaintiff  in  all  ac- 
tions against  the  Corporation  of 
New  York  city  to  allege  in  his  com- 
plaint a  presentment  of  his  claim  to 
the  Comptroller,  and  the  refusal  of 
the  latter  to  pay  or  adjust  the  same, 
— is  not  restricted,  in  its  application , 
to  any  particular  class  of  cases.  Rus- 
sell v.  Tfie  Mayor  ofN.  T.,  262 

.  A  complaint  omitting  such  an  alle- 
gation, cannot  be  upheld  upon  the 
ground  that  the  claim,  e.  g.,  for  dam- 
ages sustained  by  falling  into  a  hole 
in  the  sidewalk,  was  not  of  such  a 
character  as  the  comptroller  would 
have  been  authorized  to  adjust,  had 
it  been  presented  to  him.  ib. 

.  In  an  action  against  the  city  corpor- 
ation, the  defendants  set  up  in  their 
answer  as  a  distinct  ground  of  de- 
fence, the  fact  that  the  complaint  did 
not  contain  the  allegation  of  a  pre- 
sentment of  demand  to  the  comp- 
troller, as  required  by  statute.  On 
the  trial,  the  defendant  moved  to 
dismiss  the  complaint  on  the  ground 
of  such  omission, — Held,  that  the 
motion  should  have  been  granted,  ib. 

9.  The  fact  that  the  judge  denied  the 
motion,  and  permitted  the  case  to  go 
to  the  jury,  who  rendered  a  verdict 
in  the  plaintiff's  favor,  cannot  help 
him,  he  having  acquired  no  addi- 
tional rights  by  the  erroneous  deci- 
sion of  the  judge,  ib. 

10.  It  seems  that  as  the  provision  of  the 
statute,  requiring  the  plaintiff  to  al- 
lege presentment  of  claim,  &c.,  to 
the  comptroller,  is  for  the  benefit  of 
the  corporation,  they  may  waive  an 
omission  of  such  allegation,  and  a 
failure  to  take  advantage  of  such  an 
omission  by  their  answer,  will  be  re- 
garded as  an  express  waiver.         ib. 

See  ACCOUNT  STATED,  1. 

LANDLORD  AND  TENANT,  5. 
MECHANICS'  LIEN,  2,  8. 

PRACTICE. 

1.  In  an  action  by  a  married  woman 
to  recover  money  paid  by  her,  the 
question  whether  the  money  so  paid 
was  her  scpaate  property  or  not,  is 


622 


INDEX. 


one  of  fact,  which  it  is  proper  to  sub- 
mit to  a  jury.  Tlwmas  v.  Wickman,  58 

2.  It  is  not  necessary  that  the  under- 
taking given  upon  obtaining  a  stay 
of  execution  under  section  356  of 
the  Code,  should  embrace  the  under- 
taking required  by  section  354  to 
perfect  an    appeal    from  a    District 
Court.     Sperling  v.  Levy.  95 

3.  Where  the  issues  in  an  equitable 
action  are  tried  by  the  Court,  but  a 
further  inquiry  is  necessaiy  before 
judgment,  the  entry  of  the  decision 
of  the  Court  upon  the  issues,  with 
the  direction  for  the  further  proceed- 
ings, is  an  order  involving  the  merits, 
from  which  an  appeal  may  be  taken 
to  the  General  Term.    The  cases  of 
Bently  v.  Jones,  4  How.  Pr.,  335; 
Ring    v.    Stafford,  5  id.,  SO  /   and 
Lawrence  v.  The  Farmer's  Loan 
Trust  Co.,  15  id.,  57;  6  Duer,  689, 
examined  and  dissented  from.  Smith 
v.  Lewis,  452 

4.  To  enable  a  party  to  review,  upon 
an  appeal  from  such  an  order,  the 
decision  of  the  judge  upon  the  trial 
of  the  issues,  a  case  may  be  made 
within  ten  days  after  notice  of  the 
decision. 

5.  Where  a  jury  trial  is  waived  in  an 
action  upon  contract,  or  in    other 
actions,  by  the  assent  of  the  Court, 
judgment  is  entered  up  upon  filing 
the  conclusions  of  the  judge,  and  his 
decision  upon  the  trial  in  such  a  case 
can  be  reviewed  only  by  an  appeal 
from  the  judgment.  ib. 

6.  Although  as  to  some  defects,  a  com- 
plaint may  be  amended   at  the  trial 
in  furtherance  of  justice,  yet  where 
it  cannot  l>e  amended  without  chang- 
ing the  form  of  action,  the  amend- 
ment will  not  be  allowed.   Bailey  ,v. 
Johnson,  61 

7.  Where,  in  a  proceeding  instituted 
by  a  sub-contractor  under  the  me- 
chanic's lien  law  of  1851,  it  appears 
by  the  complaint,  and  by  the  facts 
admitted  by  the  counsel,  that  no  lien 
can  be  established,  a  motion  for  leave 
to  amend  the  proceeding  into   an 
ordinary  action  for  the  recovery  of 
money,  against  the  contractor,  will 
be  denied.  ib. 

8.  An  application  for  leave  to  amend  a 
pleading  at  the  trial,  is  addressed  to 


the  favor  of  the  Court,  and  its  dis- 
position is  not  the  subject  of  review 
upon  appeal.  ib. 

9.  Although    a    motion    for    nonsuit 
might  have  been  properly  granted  on 
plaintiff's  resting  his  case,  on  the 
ground  that  the  evidence  was  too 
slight  to  sustain  the  claim,  yet,  where 
the  case  was  subsequently  strength- 
ened by  the  defendant's    witnesses, 
the  exception  taken  on  denying  that 
motion  is  not  available  on  appeal. 
Battard  v.  Lockwood,  158 

10.  It  is  a  matter  of  discretion  for  the 
judge  to  exclude  a  question  on  the 
ground  that  it  has  already  been  an- 
swered in  effect ;  and  as  such,  the 
exclusion    is    not    reviewable     on 
appeal.  ib. 

11.  The  defence  of  usury  is  an  uncon- 
scionable one,   and  the  courts  will 
not     usually     open     a    judgment 
obtained  by  default  to  establish  it, 
or  allow  the  amendment  of  a  plead- 
ing for  that  purpose.  Parish  v.    Cor- 
lies,  274 

12.  Where  there  is  only  one  issue,  and 
the  intention  of  the  jury  to  find  for 
the  plaintiff  is  manifest,  the  Court 
will,  in  case  of  a  mistake  by  them, 
correct  their  verdict  by  making  it 
conform  to   their  finding,  and  give 
judgment  upon  it  accordingly.    Wells 
v.  Cox,  515 

13.  On  the  trial,  the  Court  charged  the 
jury  that  if  their  finding  was  in  favor 
of  the  plaintiff,  the  amount  due  him 
was  six  hundred  and  sixteen  dollars 
and  twenty-nine   cents.    •  The   jury 
found  for  the  plaintiff,  but  forgetting 
the  amount  given  by  the  Court,  re- 
turned a  sealed  verdict  for  the  plain- 
tiff "  for  the  whole  amount  claimed 
and  interest,"— fleM.   that  the  Court 
could,  on  motion,  correct  the  verdict 
by  inserting  in  it  the  sum  stated  in 
the  charge.  ib. 

14  Where  evidence  is  ruled  out  by  the 
Court  below,  the  appellate  Court  will 
not  inquire  into  its  relevancy,  unless 
it  or  its  substance  appear  in  the  case, 
but  will  assume  that  the  decision  of 
the  Court  is  correct.  Berry  v.  May- 
new,  54 

See  ABATEMENT  Am>  REVIVAL,  1. 
DISTRICT  COURT  PRACTICE,  4,  6. 
JUDGMENT,  1. 


INDEX. 


623 


See  ABATEMENT  AND  KENEWAL,  2. 
ACCOUNT  STATED,  3. 
APPEAL,  6. 
JUDGMENT,.  3,  4,  5. 

PRINCIPAL  AND  AGENT. 

1.  In  general,  a  factor  has  a  lien  for  his 
general  balance  on  the  property  of 
his  principal  coming  into  his  hands. 

2.  A  commission  merchant  advanced 
money  to  his  principal  on  his  in- 
dorsement,   and  charged  the  note, 
upon  which  the  advance  was  made, 
in  his  general  account, — Held,  that 
the  mere  charging  of  the  note  to  the 
principal  did  not  entitle  the  latter  to 
its  possession.  The  agent  had  a  right 
to  retain  it  as  his  principal's  proper- 
ty, until  he  was  paid  the  balance  of 
his  general    account  arising  in  the 
course  of  their  dealings.  Myer  v.  Ja- 
cobs, 32 

3.  The  rule  that  an  agent  or  trustee 
cannot  confer  upon  another  the  right 
to  discharge  the  trust  or  duty  creat- 
ed by  his  appointment,  applies  only 
•where  the  act  to  be  done  involves 
personal   trust  and  confidence,  and 
calls  for  the  exercise  of  the  agent's 
discretion  or  judgment;  a  mere  min- 
isterial or  executive  authority  may 
be  delegated  by  an  agent  to  another. 
Grinnett  v.  Buchanan,  538 

4.  Where  A.  agreed  with  B.,  that  if 
within  a  fixed  time  B.  should  make 
an  arrangement  for  the  taking  down 
of  certain  house?,  he  would  pay  B.  a 
sum  of  money,  which  sum  was  to  be 
paid  as  a  bonus  to  the  party  taking 
down  the  houses,  and  the  arrange- 
ment was  made, — Z/«W,that  the  agen- 
cy of  B.  to  receive  and  pay  over  the 
money,  was  not  one  involving  per- 
sonal   trust     and    confidence,    and 
might  be  assigned.  ib. 

5.  Held  further,  that  this  arrangement 
having  been  made,  and  its  stipula- 
tions performed  by  C.,  the  amount  to 
be  paid  by  A.  was  simply  a  debt,  on 
which  a  right  of  action  remained  in 
B.  to  be  prosecuted  for  the  benefit 
of  C.,  and  which  might  be  assigned 
by  A.  to  the  party  beneficially  in- 
terested, ib. 

The  effect  of  Considerant  v.  Brisbane 
(22  N. "?.,  389),  considered  and  dis- 
cussed ,  per  Daly,  F.  J. ,  ib. 


.  The  Code  having  abolished  the  dis- 
tinction between  actions  at  law  and 
suits  in  equity,  and  left  but  one  form 
of  procedure,  that  form  of  proceed- 
ing is  to  be  preferred  which  is  the 
most  direct,  consistent  and  compre- 
hensive. Hence,  where  at  common 
law  the  suit  would  have  to  be 
brought  in  the  name  of  the  trustee, 
for  the  benefit  of  the  cestui  que  trust, 
while  in  equity  it  might  be  brought 
directly  by  the  latter — the  equitable 
form  is  to  be  preferred. 

.  If  goods  sold  to 'an  agent  have  come 
to  the  use  of  his  principal,  the  seller, 
upon  discovering  the  principal,  may 
require  payment  of  him,  although 
he  instructed  the  agent  not  to  pur- 
chase on  credit,  unless  the  principal 
can  show  that  it  would  change  the 
state  of  a6counts  between  himself 
and  his  agent  to  his  prejudice.  It 
would  be  otherwise,  however,  if  the 
seller  gives  the  credit  exclusively  to 
the  agent,  as  when  he  hears  of  the 
existence  of  the  principal,  and  yet 
debits  the  goods  to  the  agent.  Rowan 
v.  Buttman,  412 

Where  a  person  carrying  on  a  bake- 
ry, with  all  the  external  appearance 
of  ownership,  and  representing  him- 
self to  be  the  owner,  purchases  a 
quantity  of  flour  which  was  used  in 
the  business,  and  it  appeared  that 
he  was  formerly  the  owner  of  the 
bakery,  that  he  became  embarrassed, 
and  that  he  had  entered  into  a  writ- 
ten agreement  with  the  defendant, 
who  was  in  another  business,  declar- 
ing that  the  defendant  was  the  own- 
er of  the  stock  in  trade,  and  the  fix- 
tures— that  he  was  to  manage  and 
carry  on  the  business  for  the  defend- 
ant at  twelve  dollars  per  week,  and 
if  the  net  profits  exceeded  that  sum, 
then  he  was  to  have  a  certain  pro- 
portion of  them — the  whole  transac- 
tion having  the  appearance  of  one  of 
the  ordinary  contrivances  by  which 
a  debtor,  with  the  aid  of  a  secret 
principal,  attempts  to  evade  the  pay- 
ment of  his  debts,— Held,  that  the  de- 
fendant was  liable  to  the  plaintiff, 
though  he  testified  that  there  was  a 
verbal  agreement  that  the  agent  was 
to  buy  only  for  cash,  and  that  when 
he  wanted  money  for  flour,  that  he 
was  to  come  to  him  for  it  ib. 

See  CARRIERS,  11,  12. 
COMMISSIONS,  1,  2. 
CONSIGNOR  AND  CONSIGNEE,  2. 
MASTER  AND  SERVANT,  4. 


62± 


INDEX. 


PROMISSORY  NOTES. 
Bee  BILLS,  NOTES  AND  CHECKS. 

R 

RAILROAD  COMPANIES. 

A  statute  declaring  that  railroad  com- 
panies shall  not  charge  more  than 
three  cents  a  mile  for  the  transporta- 
tion of  a  passenger  and  his  ordinary 
baggage,  under  a  penalty,  does  not, 
apply  to  railroads  in  cities  composed j 
of  separate  vehicles  drawn  by  horses, 
unprovided  with  apartments  for  the 
safe  keeping  and  transportation  of 
baggage,  the  vehicles  of  which  must 
stop  at  any  part  of  the  route  where  a 
passengerpresentshimself,  andforhim 
to  leave  when  he  wishes,  tlie  compen- 
sation for  whose  carriage  cannot  be 
adjusted  by  the  standard  of  miles, 
but  must  be  one  fixed  sum,  whether 
he  goes  the  entire  distance  or  not ; 
but  it  applies  only  to  railroads  whose 
cars  are  propelled  by  steam,  which 
transport  passengers  and  their  bag- 
gage from  ope  fixed  place  or  station 
to  another,  without  stopping  at  any 
intermediate  point,  and  in  which  it 
is  possible  to  adjust,  beforehand  the 
amount  of  fare  to  be  paid  from 
place  to  place.  Hoyt  v.  Sixth  Ave. 
R  R  Co.,  528 

See  NEGLIGENCE,  8,  9, 10, 11, 12. 
INTERNAL  REVENUE. 

REPLEVIN: 

See  ABATEMENT  AND  REVIVAL,  3,  4, 
ACTION,  3,  4. 

RES    ADJUDICATA. 

1.  Where  the  affidavit  of  the  defendant 
in  summary  proceedings  to  dispos- 
sess for  the  non-payment    of  rent 
raises  two  questions,  and  the  jury 
finds   generally  for  the   defendant, 
both  questions  are  presumptively  res 
adjudicata,  and  in  a  subsequent  pro- 

i  ceeding,  in  which  one  of  such  ques- 
tions arises,  it  is  for  the  plaintiff  to 
show  that  it  was  not  passed  upon  by 
the  jury.  Tankers  &  N.  T.  Fire  Ins. 
Co.  v.  Bishop,  449 

2.  Where,  in  the  summary  proceedings 
the  defendant's  affidavit  denied  his 


indebtedness  on  various  grounds,  in- 
cluding that  of  eviction  by  title  par- 
amount, and  also  denied  any  de- 
mand of  the  rent,  and  the  jury  found 
a  general  verdict  for  the  defendant, 
— Held,  in  a  subsequent  action  for  the 
same  rent,  that  the  verdict  was  pre- 
sumptively res  adjudicata  on  both 
points,  and  that  it  was  for  the  plain- 
tiff to  show  that  the  jury  only  passed 
on  the  question  of  demand.  t&. 


s 


SALE  AND  DELIVERY  OF  CHAT- 
TELS. 

1.  It  is  a  general  principle  that  when 
goods  are  ordered  to  be  sent  by  a  car- 
rier, a  delivery  to  the  carrier  oper- 
ates as  a  delivery  to  the  purchaser, 
in  whom  the  title  immediately  vests, 
subject  to  the  vendor's  right  of  stop- 
page in  transitu ;  and  the  goods,  in 
the  course  of  transit,  are  at  the  risk 
of  the  purchaser.    Baker  v.  Bourci- 
cault,  23 

2.  But  where  it  is  apparent,  from  the 
circumstances  under  which  the  de- 
livery was  made.,  that  the  vendor  did 
not  trust  to  the  ability  or  readiness 
of  the  purchaser  to  perform  his  con- 
tract, and  intended  to  insist  upon 
strict  prepayment  as  a  condition  of 
delivery  by.  the  carrier, — Held,  that 
such  delivery  by  the  vendor  to  the 
carrier,  is  not    within  the  general 
rule,  and  does  not  operate  to  pass 
title.  ib. 

3.  The  defendant  ordered  certain  goods 
of  the  plaintiffs,  and  left  it  at  their 
option  whether  he  should,  send  the 
amount  of  their  bill  by  return  of 
post,  or  whether  it  should  be  collect- 
ed by  the  express  company,  on  de- 
livery. The  plaintiffs  sent  the  goods, 
by  express  company,  with  directions 
to  collect  upon  delivery.    The  vessel  by 
which  the  goods  were  shipped  was 
lost  at  sea, — Held,  1.  That  payment 
and  delivery   were  intended  to  be 
simultaneous  acts,   and    until    such 
payment  and  delivery,  the  title  re- 
mained hi  the  vendor,  the  contract 
being  merely  executory.  2.  That  con- 
sequently the  goods  were,-  while  in 
the  course  of  transit,  at  the  risk  of 
the  vendor  ;  and,  be 'ing  lost,  no  ac- 
tion would  lie  against  the  vendee  for 


INDEX. 


625 


the  contract  price.  3.  It  makes  no 
difference  that  the  goods  were  sen 
by  a  particular  carrier  named  by  the 
vendee,  By  such  delivery  and  in 
structions  to  the  carrier,  the  vendor 
made  him  his  own  agent.  ib 

4.  A  tender  by  the  vendor,  of  an  unin 
dorsed  custom  house  permit,  author 
izing  a  delivery  of  the  goods  by  the 
warehouse  man,  it  appearing  thai 
the  permit  was  sufficient  if  indorsed 
by  the  vendor,  td  enable  the  vendee 
to  take  possession, — Held,  a  sufficient 
offer  of  delivery  of  the  goods.    The 
want  of  the  indorsement  was  imma- 
terial, as  the  indorsement  could  have 
been  made    immediately,    had    the 
vendee    made     objection     on    that 
ground.    Duribar  v.  Pettee,  11 

5.  Where  it  appears  from  the  course  of 
dealing  of  the  warehouse  man,  or  by 
the  agreement  of  the  parties,  that 
the  goods  stored  will  be  delivered 
without  requiring  immediate  pay- 
ment of  the  storage,  the  warehouse 
man  relying  upon  the  personal  cred- 
it of  the  party,  there  is  no  lien  ;  be- 
cause such  a  course  of  dealing  is  in- 
consistent with  an   implied  agree- 
ment at  the  time  of  the  deposit,  that 
the  property  is  not  to  be  taken  away 


unless  the  storage  is  paid. 


ib 


6.  Where  it  was  the  established  usagi 
of  the  storehouse  keeper  to  deliver 
property  to  houses  in  good  standing 
relying  upon  their  personal  credi 
for  the  payment  of  the  storage,  the 
right  of  lien  was  waived,  and  the 
Court  would  have  no  right  to  imply 
nor  would  a  jury  be  justified  in  find 
ing,  that,  the  contract  of  the  plaintiff 
with  the  storekeeper  was  differen 
from  that  of  other  houses  in  gooc 
standing ;  but  it  must  be  presumed 
that  the  plaintiffs  contracted  upon 
the  same  terms  as  others  in  like  situ- 
ations until  the  contrary  is  shown,  ib 

7.  There  being  no  lien  upon  the  prop- 
erty for  storage,  and  the  vendee  on 
the  permit  already  tendered  having 
the  right  to  the  possession  of  the 
property,  it  would  be  unreasonable 
to  require  that,  at  the  time  of  the  de- 
livery, the  vendor  should  pay  the 
storage.  ib. 

8.  The  plaintiffs  sold  to  N.  and  S.  joint- 
ly, a  quantity  of  goods,  to  be  paid 
for  in  cash,  on  delivery,  or  by  the 
note  of  8.  at  three  months,  indorsed 

40 


by  N.  The  plaint  iffs  delivered  part 
of  the  goods,  but  refused  to  deliver 
the  residue,  on  the  ground  that  S. 
had  failed.  Plaintiff  made  no  tender 
of  the  goods,  nor  demand  for  either 
cash  or  the  note,  but  brought  his  ac- 
tion for  the  value  of  the  goods  before 
the  expiration  of  the  three  months, 
— Held,  that  a  motion  for  a  nonsuit 
should  have  been  granted.  1st.  The 
contract  being  an  entirety,  no  recov- 
ery could  be  had  until  the  whole  of 
the  goods  were  delivered.  2nd.  Tho 
insolvency  of  one  of  the  purchasers 
was  no  excuse  for  the  plaintiff's  neg- 
lect to  tender  delivery  to  the  other, 
and  make  the  election  either  to  take 
the  note  or  cash.  Soloman  v.  Neidig, 

200 

9.  Where  a  vendor,  at  the  time  of  the 
sale,  agrees,  that  if  the  goods  when 
delivered  are  inferior  to  the  sample, 
they  may  be  exchanged,  it  is  a  con- 
ditional sale,  and  the  inferiority  of 
the  goods  is  no  defence  to  an  action 
for  the  price.  The  vendee  should,  on 
discovering  the  quality  of  the  goods, 
tender  them  back  to  the  vendor,  or 
at  least  notify  him  of  the  defect ;  and 
failing  to  do  so,  he  is  estopped  from 
denying  their  value.     Fisher  v.  Mer- 
win,  234 

10.  Where,  by  a  custom  of  the  trade,  a 
purchaser  pf  goods  on  shipboard  is 
bound  to  unload  within  a  definite 
time,  and  by  reason  of  the  purchas- 
er's failure  to  take  the  goods  within 
that  time,  the  owner  is  obliged  to 
pay    lighterage    and    storage    fees 
thereon, — Held,  that  the  purchaser 
is  liable  for  such  payments.     Dayton 
v.  Rowland,  446 

• 

See  CHATTEL  MORTGAGE,  1,  2. 
CONVERSION,  1. 
DURESS,  1,  2,  3. 

SHIPPING. 

1.  For  supplies  furnished  a  vessel  upon 
the  order  of  the  captain,  while  acting 
for  the  owners,  the  owners  are  liable 
in  solido;  and  a  non-joinder  of  any 
part-owner  in  an  action  to  recover 
for  such  supplies  may  be  taken  ad- 
vantage of  by  plea  in  abatement.  Sa- 
ger  v.  Nichols,  1 

A  person  whose  real  interest  in  a 
vessel  is  only  that  of  a  mortgagee, 
and  who  has  never  taken  possession 
of  the  same,  is  not  answerable  for 
supplies,  although  he  holds  a  bill  of 


INDEX. 


sale,  vesting  in  him  the  legal  title,] 
and  the  vessel  is  registered  in  his 
name  at  the  custom  house.  Baxter 
v.  Wallace,  303 

3.  The  registration  of  a  vessel  at  the 
custom  house,  under  a  bill  of  sale,  al- 
though accompanied  by  the  oath  of 
the  person  in  whose  name  it  is  regis- 
tered, that  he  is  the  true  and  only 
owner,  is  not  conclusive  as  to  the 
the  ownership.  &>. 


for  supplies,  it  must  be  shown  either 
that  he  was  in  possession  of  the  ves- 
sel, or  that  the  supplies  were  fur- 
nished at  his  request,  or  by  the  di- 
rection of  some  person  authorized  to 
contract  in  his  behalf.  ib. 

5.  Lighterage  is  the  price  paid  for  un- 
loading ships  by  lighters  or  boats, 
and  a  charge  for  taking  a  boat  to  an- 
other pier  instead  of  the  usual  one  of 
delivery  would  not  be  embraced  un- 

I    der  that  term.     Western  Transporta- 


tion  Co.  v.  Hawley, 


327 


6.  Demurrage     is    only    recoverable 
where  it  has  been  expressly  stipulat- 
ed for,  though  where  there  has  been 
an  unreasonable  or  improper  deten- 
tion of  the  vessel  by  the  act  of  the 
freighter  or  consignee,  damages  may 
be  recovered  by  the  owner.  ib. 

7.  A  mariner  who  is  in  a  vessel  when 
she  commences  her  voyage,  but  who 
leaves  her  while  she  is  temporarily 
stayed  in  the  harbor  by  accident 
head  winds  or  other  causes,  before 

f  she  reaches  the  main  ocean,  has  not 
"  proceeded  to  sea,"  in  the  sense  in 
which  that  term  is  to  be  understood 
in  an  agreement  for  the  payment  of 
money  upon  that  condition.  James 
v.  Ragan,  517 

8.  Where  it  was  agreed  that  money 
should  be  paid  to  a  seaman  as  soon 
as  he  should  proceed  to  sea  agreea- 
bly to  the  shipping  articles,  and  the 
ship  started,  but  before  leaving  the 
harbor    was  compelled  by  accident 
to  return, — Held,  in  the  absence  of 
proof  of  the  contents  of  the  shipping 
articles,  that  the  condition  of   the 
agreement  was  unfulfilled,  and  there 
could  be  no  recovery  on  it.  ib. 

See  INJUNCTION,  1. 

C AKRIKU,  4. 


SPECIFIC    PERFORMANCE. 
See  ARBRITBATION,  1,  2,  3,  4,  5. 

STATUTES. 

1.  The  penal  laws  of  a  State  being 
strictly  local  in  their  character  and 
effect,  there  can  be  no  recovery  for 
an  offence  under  them,  committed 
beyond  the  territorial  jurisdiction  of 
the  State.    Peterson  v.  Walsh,       182 

2.  Exposition  of  the  law  in  relation  to 
vagrancy,    disorderly  persons,  and 
disorderly   conduct  in  the  city  of 
New  York;  the  correct  course  of 
procedure  under  the  various  statutes, 
in  summary  convictions  and  com- 
mitments  for  such  offenses  before 
police  justices  pointed  out,  and  the 
nature  and  extent  of  the  power  that 
may  be  exercised  in  reviewing  such 
cases  upon  writs  of  habeas  corpus  and 
certiorari.    Matter  of  Mitter,         563 

3.  The  offenses  which  constitute  disor- 
derly conduct  under  the  acts  of  1838, 
ch.  11,  and  of  1860,  ch.  508,  are  dif- 
ferent from  the  offenses  which  will 
constitute  a  "  disorderly  person  "  un- 
der the  act  of  1833,  and  the  Revised 
Statutes.    In  common  parlance,  one 
who  is  guilty  of  disorderly  conduct 
may  be  regarded  as  a  disorderly  per- 
son, but  these  terms,  "  disorderly  per- 
sons" and  "  disorderly  conduct,"  are 
used  in  the  statutes  as  distinguishing 
distinct  and  different  offenses.         t&. 

4.  There  are,  under  the  statutes  regu- 
lating these    summary  convictions 
before  a  magistrate  without  a  jury, 
three  classes  of  offenders.    1.    Va- 
grants. 2.  Disorderly  persons.  3.  Per- 
sons guilty  of  disorderly   conduct ; 
each  of  which  is  distinguishable  from 
the  other,  and  in  each  the  course  of 
procedure  is  different.  ib. 

5.  Though  the  statute  of  1833  is  silent 
as  to  what  the  magistrate  is  to  do  af- 
ter a  conviction  for  disorderly  con- 
duct, if  the  offender  fail  to  give  secu- 
rity for  his  good  behavior,  it  is  man- 
ifestly implied,  that  he  is  to  be  com- 
mitted until  he  gives  it,  or  until  the 
expiration  of  the  period  for  which 
he  was  required  to  give  it.  ib. 

6.  The  act  of  1859,  chap.  491,  author- 
izing* police  justices  to  impose  a  fine 
of  ten  dollars,  in  cases  of  disorderly 
conduct,  was  not  intended  to,  and 


IKDEX. 


627 


does  not  abrogate  the  previous  pro- 
vision, empowering  them  to  require 
security  for  good  behavior  in 
such  cases.  It  is  in  the  discretion 
of  the  justice  either  to  impose  the  fine 
or  to  require  security. 

7.  The  twentieth  section  of  the  act  of 
1860,  ch.  508,  which  declares  that 
certain  acts  shall  constitute  disor- 
derly conduct,  was  not  intended  to 
limit  the  offense  to  such  acts.    The 
only  effect  of  it  is,  that  it  leaves  noth- 
ing to  the  discretion  or  opinion  of 
the  magistrate  where  such  acts  are 
proved,  but  makes  it  his  duty  to  com- 
mit $>. 

8.  The  proceedings  upon  a  conviction 
for  disorderly  conduct  were  designed 
to  be  of  a  more  summary  nature  than 
upon  the  conviction  of  vagrants  and 
disorderly    persons.    In   the    latter 
cases,  a  record  of  the    conviction 
must  be  filed,  but  the  filing  of  a  rec- 
ord is  not  necessary  in  committing 
for  disorderly  conduct.  ib. 

9.  It  is  not  essential  to  the  validity  of 
a  commitment  for  disorderly  conduct 
that  it  should    set    forth   the    acts 
which,  in  the  opinion  of  the  magis- 
trate, tend  to  a  breach  of  the  peace. 
Where    the    commitment    declares 
that  the  prisoner  was  charged  be- 
fore the  magistrate,  on  the  oath  of 
witness,  who  is  named,  with  such 
disorderly  conduct,  as  in  the  opinion 
of  the  magistrate,  tends  to  a  breach 
of  the  peace,  and  that  he  was  re- 
quired to  give  security  for  his  good 
behavior,  and  failed  to  give  it,  it  is 
sufficient.  ib. 

10.  Where  the  criminal  process  upon 
which  the  party  is  imprisoned  is  re- 
turned in  answer  to  a  writ  of  habeas 
corpus,  all  that  the  officer  granting 
the  writ  can  do,  is  to  examine  the 
process,  to  see  if  the  officer  or  court 
whence  it  emanated  had  jurisdiction 
of  the  subject  matter,  and  if  that  ap- 
pears upon  the  face  of  the  process 
the  party  must    be  remanded.    If 
the  officer  making  the   commitment 
acted  upon  insufficient  evidence,  or 
without  any  evidence  at  all,  the  rem- 
edy is  by  a  writ  of  certiorari  to  the 
Court  of  Sessions,  under  the  act  of 
1859,  chap.  339.  t&. 

11.  Where  the  order  for  the  transfer  of 
the  offender  from  the  City  Prison  to 
the  Work-House,  purports  upon  its 
face  to  be  made  by  the  direction   of 


the  Board  of  Commissioners  of  Pub- 
lic Charities,  and  is  authenticated  by 
the  signature  of  one  of  the  commis- 
sioners, it  is  sufficient.  Otherwise, 
when  it  is  signed  by  one  of  the  com- 
missioners only,  and  there  is  nothing 
upon  its  face  to  denote  that  it  was 
done  by  order  of  the  Board.  ib. 

12.  Where    a  power   is   given   to   a 
Board  of  Commissioners  by  statute, 
the  official  act  of  one  of  the  members 
will  not  suffice,  but  it  must  appear 
that  the  Board  acted  in  the  premises. 

ib. 

13.  A  commitment  for  disorderly  con- 
duct until  the  offender  finds  secu- 
rity in  a  certain  sum  for  his  good 
behavior  is  bad,  as  it  is  equivalent 
to  perpetual    imprisonment,  if   he 
should  be  unable  to  find    security. 
It  must  be  for  some  fixed  term  or 
period,  and  must  not  exceed  twelve 
months.  ib. 

14.  The  provision  in  the  act  of  1864, 
chap.  586,  declaring  that  no  person 
committed  to  the    City  Prison   or 
Work-House,  for  drunkenness  or  dis- 
orderly conduct,  should  be  discharg- 
ed, except  upon  reversal  of  judgment 
upon  appeal,  or  review  by  a  court  of 
superior  jurisdiction  to  the  magis- 
trate making  the  commitment,  does 
not  preclude  a  judge  upon  habeas 
corpus  from  enquiring  whether  the 
magistrate  making  the  commitment 
acted  in  a  matter  of  which  he  had 
jurisdiction,  .and     discharging    the 
party  if  there  was  a  want  of  jurisdic- 
tion. $. 

15.  The  writ  of  7tabea*  corpus  stands 
upon  the  same  footing  as  the  writs 
of  quo  warranto,  mandamus,  certiorari 
and  prohibition,  and  as  in  the  case  of 
these  writs,  the  proceedings  under  it 
are  appellate  in  their  character.      It 
issues  under  the  seal  of  the  Supreme 
Court.    The  officer  acting  under  it  is 
clothed  by  statute  with  the  same 
power  as  the  court ;  it  brings  up  the 
body  of  the  prisoner  with  the  cause 
of  his  commitment,  and  the   pro- 
ceeding under  it  is  a  review  by  a 
court  having  superior  jurisdiction  to 
the  magistrate  making  the  commit- 
ment- i',. 

16.  All  which  is  essential  to  constitute 
a    court    exist    in    the    proceeding 
which  is  had  l>efore  a  judge  upon  a 
writ  of  habeas  corpus  ;  the  actor,  or 


623 


INDEX. 


plaintiff,  the  reus,  or  defendant,  and 
thejudex,  or  judicial  power  which  is 
to  examine  into  the  fact,  the  law 
arising  upon  it,  and  to  apply  the  rem- 
edy ;  the  officer  acting  not  ministe- 
rially but  judicially,  with  authority 
by  statute  to  imprison.  #>. 

17.  Where  an  authority  is  created  by 
statute,  with  power  to  fine  or  im- 
prison, the  officer,  person  or  body  in- 
vested with  such  authority  is,  for 
that  purpose,  deemed  a  court.  ib. 


STATUTE    OF    FRAUDS. 

1.  The  defendant,  the  clerk    of   the 

Elaintiff,  who  was  a  hatter,  told  the 
itter  that  if  any  of  his  personal 
friends  bought  hats  on  credit,  he 
would  pay  for  them  if  they  did  not. 
The  defendant  sold  hats  to  his  friends 
which  were  charged  to  them  on 
plaintiff's  books, — Held,  that  the 
promise  of  the  defendant  was  collat- 
eral, and  within  the  statute  of  frauds, 
and  therefore  void.  Knox  v.  Niitt,  21 § 

See  LANDLOBD  AND  TENANT,  15. 


SUMMONS. 

1.  An  undertaking  given  pursuant  to 
section  209  of  the  Code  of  Procedure 
in  an  action  of  claim  and  delivery 
of   personal    property,  conditioned 
for  a  return  of  the  property,  if  a  re- 
turn should  be  adjudged,  and  for  the 
payment  of  such  sum  as  should,  for 
any  cause,  be  recovered  against  the 
plaintiff  hi  the  action,  is  substantially 
one    for    the    payment   of  money 
Montegriffo  v.  Musti,  73 

» 

2.  And  an  action  against  the  sureties 
in  such  undertaking,  is  an  action 
arising  on  contract  within  section  12S 
of  the  Code,  and  a  summons  for  a 
money  demand,  in  such  an  action,  is 
proper. 

3.  By  appearing  and  pleading  to  the 
merits,  the  defendants  waive  all  ob 
jections  to  the  form  of  the  summons 
Le  Sage  v.  Great  Western  It.  Cof  306 

See  JUDGMENT,  5. 
PLEADINGS. 
PRACTICE. 


T 

TELEGRAPH    COMPANIES. 

1.  The  defendants,  a  telegraph  com- 
pany, received  from  the  plaintiffs,  at 
Washington,  D.  C. ,  a  dispatch  to  be 
transmitted  over  its  line  to  the  plain- 
tiffs' agents  in  New  York,  directing 
them  to  sell  for  plaintiffs  their 
"  Southern  Michigan  before  board  ; 
buy  five  Hudson  at  board."  The  dis- 
patch, as  received  by  the  plaintiffs' 
agents,  directed,  them  to  sell  their 
Southern  Michigan  stock  before 
board,  and  "  buy  five  hundred  at 
board."  The  agent  sold  the  plaintiffs' 
Southern  Michigan  stock  before  the 
board,  and,  at  the  board,  purchased 
five  hundred  shares  of  the  same  stock. 
The  plaintiffs,  on  being  apprised  by 
telegraph  the  same  day,  of  the  trans- 
action, sent  another  dispatch,  correct- 
ing the  error,  and  repeating  the  first 
order.  This  dispatch  being  received 
after  the  adjournment  of  the  board 
of  brokers,  the  agents  sold  on  the 
street  the  five  hundred  shares  of 
Michigan  Southern  R.  R.  stock,  pur- 
chased by  them,  at  a  loss  of  four 
hundred  and  seventy-five  dollars, 
and  purchased  at  the  lowest  price 
five  hundred  shares  of  the  Hudson 
River  R.  R.  stock,  which  was,  for  the 
whole  number  of  shares  purchased 
one  thousand  three  hundred  and 
seventy-five  dollars  more  than  the 
same  could  have  been  bought  for  at 
the  board  of  brokers  that  day, — Held, 
that  the  plaintiffs  were  entitled  to 
recover  of  the  defendants  the  differ- 
ence between  the  price  at  which  the 
five  hundred  shares  of  the  Hudson 
River  R.  R.  stock  could  have  been 
bought  at  the  board  of  brokers,  and 
the  lowest  price  for  which  the  same 
could  have  been,  and  was,  bought 
after  the  adjournment  of  the  board, 
on  the  receipt  of  the  corrected  dis- 
patch. Rillenhouse  v.  The  Indepen- 
dent Line  of  Telegraph,  474 

2.  Held ,  also,  that  as  the  language  used 
in  the  dispatch,  however  indefinite 
to  others,  was  intelligible  to  the 
agents,  they  were  not  charged  with 
the  duty  of  making  further  inquiry 
before  acting  upon  it  w. 

.  Held,  also,  that  defendant  having 
placed  it  beyond  the  power  of  the 
plaintiffs'  agents  to  make  the  pur- 
chase of  the  five  hundred  shares  of 


INDEX. 


629 


the  Hudson  River  R  R  stock  at  the 
board  of  brokers,  it  could  not  avail  it- 
self of  the  fact  that  the  purchase  was 
made  on  the  street  after  the  adjourn- 
ment of  the  board,  it  not  appearing 
that  it  was  injured  by  the  circum- 
stance, ib. 

4.  Held,  further,  that  the  plaintiffs  were 
not  entitled  to  recover  the  difference 
of  four  hundred  and  seventy -five  dol- 
lars on  the  sale  of  the  five  hundred 
shares  of  Michigan  Southern  R  R. 
stock.     In  legal  effect,  it  was  pur- 
chased on  the  defendant's  account, 
and  could  not  be  sold  without  notice 
to  the  defendant.  ib. 

5.  The  contract  for  the  transmission  of  a 
telegraphic  message  is  not  necessarily 
made  with  the  person  to  whom  it  i: 
sent.    If  the  person  to  whom  it  is 
addressed  is  the  one  interested  in  its 
correct    and  diligent    transmission, 
and  by  whom  the  expense  of  sending 
it  is  borne,  he  will  be  regarded  as 
the  one  with  whom  the  contract  is 
made.    De  Unite   v.  JT.    Y.,  Albany 
and  Buffalo  Tel.  Co.,  547 

6.  The  business  of  telegraph  companies, 
with  that  of  common  carriers,  is  in 
the  nature  of  a  public  employment, 
as  they  hold  out  to  the  public  that 
they  are  ready  and  willing  to  trans- 
mit intelligence  for  any  one  upon 
the  payment  of  their  charges,  and 
not  for  particular  persons  only.      ib. 

7.  Common  carriers  are  held   to  the 
responsibility  of  insurers  for  the  safe 
delivery  of  the  property  intrusted  to 
their  care  upon  grounds  of  public 
policy ; — to  prevent  fraud  or  collu 
sion  with  thieves,  and   because  the 
owner   having  surrendered  up  the 
possession  of  his  property,  is  gener- 
ally unable  to  show  how  it  was  lost 
or  injured.  ib. 

8.  These  reasons  do  not  apply  to  tele- 
graph companies,  and  they  are  not 
held  to  the  responsibility  of  insurers 
for    the    correct    transmission    and 
delivery    of   intelligence.      As    the 
value  of  theif  service,  however,  «on- 
sists  in  the  message  being  correctly 
and  diligently  transmitted,  they  ne- 
cessarily engage  to  do  so,  and  if  there 
is  an  unreasonable  delay,  or  an  error! 
committed,  it  is  presumed  to  havej 
originated  from  their  negligence,  un-j 
less  they  show  that  it  occurred  from 
causes  for  which  they  are  not  an- ! 


swerable.  The  causes  which  will 
excuse  them  commented  on  and  con- 
sidered, ib. 

9.  They  may  qualify  their   liability  to 
the  effect  that  they  will  not   be  an- 
swerable for    errors  unless   a  mes- 
sage   is    repeated,    but  this   condi- 
tion must  be  brought  home  to  the 
knowledge  of  the  person  who  brings 
the  message  for  transmission.         ib. 

10.  Where  a  telegraph  company  is  paid 
the  whole    compensation    for    the 
transmission  of  a  message  to  a  place 
beyond  their  own  lines,  with  which 
they  are  in  commupication  by  the 
agency  of  other  companies,  they  will 
be  regarded  as  engaging  that   the 
message  will  be  transmitted  to    and 
delivered  at  that  place,  unless  there 
is  an  express  stipulation  to  the  con- 
trary, or  the  circumstances  are  such 
as  to  show  that  the  understanding  of 
the  contracting  parties  was  other- 
wise, ib. 

11.  Where  a  merchant  in  San  Francisco 
receives  a  telegraphic  message  from 
New  York,  which  leads  him  into  a 
purchase  involving  inevitable  pecu- 
niary loss,  which'  would  not  have 
occurred  but  for  an  error  made  in  the 
transmission  of  the  message,  he  is 
not  compelled  to  seek  through  an 
extensive  chain  of  telegraphic  com- 
munication to  ascertain  where  the 
error  was  made,  but  the  company  to 
whom  the  message  was    originally 
given,  and  to  whom  the  whole  com- 
pensation was  paid  for  its  transmis- 
sion, is  answerable.    Having  pecu- 
liar facilities,  the  obligation  is  upon 
it  to  ascertain  where  and  when  the 
error  occurred,  and  to  fix  the  ultimate 
responsibility  where  it  properly  be- 
longs, ib. 

12.  The  defendants'  line  of  telegraph 
extended  from  New  York  to  Buffalo, 
where  it  connected  with  other  lines 
and  a  pony  express  to  San  Fran- 
cisco.    The  defendants  received  the 
entire  compensation  for  transmitting 
a  message  to  San  Francisco,  which 
was  correctly  sent  by  their  own  line 
and  by  the  connecting  lines  as  far  as 
St.  Louis,  but  an  important  mistake 
was  made  between  that  point  and 
San  Francisco, — field,  as  nothing  was 
said  about  the  defendant  being  an- 
ewerable  only  for  the  correct  trans- 
mission of  the  message  along  their 
own  line,  as  they  received  the  whola 


630 


INDEX. 


amount  that  was  asked  to  send  it  to 
San  Francisco,  without  communicat- 
ing by  what  lines  it  would  be  sent, 
or  any  other  particulars  as  to  the 
mode  or  manner  of  its  transmission, 
that  they  took  upon  themselves  the 
whole  charge  of  sending  it,  and 
were  answerable  for  the  error.  ib. 

13.  Independent  of  any  question  of 
contract,  if  a  person  is  put  to  loss 
and  damage  through  the  negligence 
of  a  telegraph  company  in  transmit- 
ting to  him  an  erroneous  dispatch, 
the  company  would  be  liable  to  him 
in  an  action  for  negligence,   and  if 
they  received  the  whole  compensa- 
tion for  sending  it,  they  would  be 
liable  in  such  an  action  though  the 
error  was  made  by  one  of  the  com- 
panies through  whom  they   trans- 
mitted it.  ib. 

14.  The  plaintiff's  agent  in  Bordeaux 
.  obtained  from  a  commercial  house  in 

that  city  an  order  for  the  plain- 
tiff, a  commission  merchant  in 
San  Francisco,  to  purchase  for 
them  arid  ship  from  San  Francisco, 
a  cargo  of  wheat,  at  a  certain  price. 
The  plaintiff's  agent  prepared  a  tele- 
gram in  these  words :  "  Edward  De 
Rutte,  San  Francisco.  Buy  for  Cal- 
larden  &  Labourdette,  bankers,  a 
ship  load  of  five  to  six  hundred  tons 
white  wheat,  first  quality,  extreme 
limit  twenty-two  francs  the  hecto- 
litre, landed  at  Bordeaux ;  same 
conditions  as  the  Monod  contract. 
Th.  De  Rutte,"— which  the  plaintiff's 
agent  sent  hi  a  letter  to  a  commer- 
cial house  in  New  York  with  instruc- 
tions to  send  it  to  the  plaintiff  at 
San  Francisco  hi  the  quickest  man- 
ner, and  to  charge  the  expense  to  the 
plaintiff.  The  house  in  New  York 
sent  it  by  their  clerk  to  the  defen- 
dants' office,  who  paid  to  the  defen- 
dants the  entire  compensation  for  its 
transmission  by  telegraph  to  San 
Francisco.  When  delivered  to  the 
plaintiff  in  San  Francisco  several 
errors  had  been  made  in  its  trans- 
mission, the  most  important  of  which) 
was  a  change  from  twenty-two  to 
twenty-^w  francs  the  hectolitre. 
The  plaintiff  was  not  misled  as  to 
the  other  errors,  and  knew  what  was 
meant,  but  the  word  twenty-five  he 
assumed  to  be  correct.  Grain  could 
be  purchased  at  that  time  hi  San 
Francisco  at  from  twenty-four  to 
twenty-five  francs  the  hectolitre,  and 
he  accordingly  chartered  a  vessel 
and  purchased  a  cargo.  But  before 


the  vessel  sailed,  he  received  via 
New  York  the  letter  which  his  agent 
had  sent,  when  discovering  the  mis- 
take, he  resold  the  wheat  and  got 
rid  of  the  charter  party,  incurring  by 
the  transaction  a  loss  of  over  two 
thousand  dollars,  for  which  he  sued 
the  defendant,  and  recovered, — Held, 
that  the  defendant's  contract  for  the 
transmission  of  the  message  was 
with  the  house  in  Bordeaux,  not 
with  the  house  in  New  York,  and 
the  action  was  properly  brought  in 
his  name.  id. 

15.  That  it  was  not  an  act  of  co-operat- 
ing negligence  for  him  to  act  upon 
the  dispatch,  without  having  it  re- 
peated, after  he  had  discovered  three 
errors  in  it.    That  they  were  not  of 
such  a  nature  as  should  have  led  him 
to  treat  the  whole  dispatch  as  unre- 
liable, and  that  he  was  justified  in 
assuming  that  the  words   "  twenty- 
five"  had  been  correctly  transmitted. 

ib. 

16.  That  as  the  error  in  the  dispatch 
was  the  cause  of  his  purchasing  the 
wheat  at  the  price  which  he  did,  and 
as  the  inevitable  loss  which  occurred 
was  the  direct  and  immediate  conse- 
quence of  the  error,  that  the  loss  he 
sustained  was  the  proper  measure 
of  damages.  ib. 

17.  A  clause  in  the  printed  condition 
of  a  telegraph  company,  that  they 
will  not  be  responsible  lor  mistakes 
or  delay  in  the  transmission  of  a 
message,  applies  merely  to  the  trans- 
mission of  the  message,  and  not  to 
mistakes,  or  a  delay  in  the  delivery 
of  the  message,  after  it  has  been  cor- 
rectly transmitted.     Bryant  v.  The 
American  Telegraph  Co.,  575 

18.  The  plaintiffs  sent  a  message  to  the 
defendants'  office  hi   New  York,  ad- 
dressed to  an  attorney  in  Providence, 
Rhode  Island,  directing  him  to  at- 
tach a  house  and  lot  in  that  city,  of 
one  B.,  who  was  then  temporarily 
absent  from   Rhode   Island,  for    a 
debt  of  twehre  thousand  dollars,  due 
by  B.'s  firm  to   the  plaintiffs.    The 
message  was  brought  to  the  defend- 
ants' office  at  halt-past  eight  P.  M., 
which  was  then  closed  for  the  ordi- 
nary transaction  of  business.     Their 
agent  was  told  that  the  message  waa 
important ;  that  unless  it  was  sent 
and  delivered  at  once  it  would  be  of 
no  use ;  that  the  object  of  the  mes- 
sage was  to  get  an  attachment  upon 
property  hi  Providence ;  that  unless 


INDEX. 


631 


it  was  made  before  the  Stonington 
train  reached  the  Rhode  Island 
State  line,  it  would  do  no  good  ;  that 
he  would  consequently  see  the  iin 
portance  of  the  matter,  and  why  the 
plaintiffs  were  so  urgent.  The  de- 
fendants' clerk  assured  the  plaintiffs' 
messenger  that  the  message  would 
be  sent  and.  delivered  as  he  wished, 
and  that  he  would  not  take  the 
money  if  he  thought  there  was  any 
doubt  about  it.  The  message  was 
sent  at  ten  minutes  past  nine,  with 
directions  from  the  operator  in  New 
York  to  send  it  La  haste,  and  was 
received  by  the  operator  in  Provi- 
dence at  half-past  nine  P.  M.,  who 
was  then  engaged  hi  receiving  re- 
ports for  the  press,  which,  by 
statute,  have  precedence  over  all 
other  matters.  The  Providence  op- 
erator answered  that  it  could  not  be 
sent  that  night,  as  the  delivery  boy 
had  gone  home,  to  which  the  other 
answered  that  it  must  be,  and  the 
former  replied  by  a  sign  expressing 
his  concurrence.  The  Providence 
operator  was  engaged  without  cessa- 
tion in  receiving  newspaper  reports 
until  half-past  eleven  o'clock  P.  M., 
when  he  had  the  message  copied  and 
sent  it  to  the  attorney.  When  the 
attorney  received  it,  it  was  too  late  to 
have  the  attachment  made,  before 
the  arrival  of  B.,  who  returned  to 
Rhode  Island  in  the  Stonington  train 
that  morning,  and  the  plaintiffs  lost 
the  advantage  of  securing  their  debt 
by  an  attachment  upon  B.'s  house 
and  lot,  which  was  worth  over 
twelve  thousand  dollars.  B.'s  firm 
afterwards  went  into  bankruptcy, 
and  all  that  the  plaintiffs  recovered 
up9n  their  debt  from  the  bankrupt 
estate  was  five  hundred  dollars, — 
Held,  that  the  plaintiffs  were  not 
bound  to  exhaust  their  legal  remedy 
against  their  debtors  by  the  recovery 
of  a  judgment  and  the  issuing  of  an 
execution  before  bringing  an  action 
against  the  telegraph  company  for 
the  recovery  of  damages.  ib. 

13.  Held,  that  the  measure  of  damages 
was  the  amount  of  the  debt  and  in- 
terest from  the  day  of  the  delivery 
of  the  message,  less  the  five  hundred 
dollars  which  the  plaintiffs  had  re- 
ceived from  the  bankrupt  estate  of 
B.'s  firm.    DALY,  F.  J.,  dissenting,  ib. 

14.  The  judge,  at  the  trial,  was  re- 
quested to  charge  that  the  only  dam- 
ages which  the  plaintiffs  could  re- 


cover, was  the  amount  paid  for  send- 
big  the  message,  with  such  other  ex- 
penses as  were  incident  to  it,  which 
the  judge  refused, — Held,  that  the 
refusal  was  correct.  DALT,  F.  J., 

vb. 


TORT. 

See  EVIDENCE,  6,  7. 
INFANT. 

TRESPASS. 

$se  MARRIED  WOMAN. 

TRIAL. 

See  PRACTICE,  5, 6,  7,  8,  9, 10. 
DURESS,  4. 


u 

UNDERTAKING. 
See  ACTION,  6,  7,  8,  9. 

USAGE. 
See  CARRIERS,  15, 16, 17. 

USURY. 

See  PRACTICE,  11. 

USE    AND    OCCUPATION. 

,  An  action  for  use  and  occupation  of 
premises  canot  be  maintained  against 
a  party  in  occupation  when  it  ap- 
pears that  there  is  a  lease  of  the 
premises  outstanding  in  a  third  per- 
son. Bedford  v.  Teihune,  321 

Where  a  lease  is  outstanding,  and  a 
party  other  than  the  lessee  is  in  pos- 
session, it  is  presumed  that  he  is  the 
assignee  of  the  lease,  unless  it  is 
shown  that  he  holds  under  a  demise 
from  the  lessee  ;  and  as  assignee  he 
is  not  liable  in  an  action  for  use  and 
occupation,  as  his  liability  is  not 
founded  upon  privity  of  estate,  and 
the  action  must  be  upon  th%  lease,  ib. 

,  A  surrender  of  the  lease  before  the 
expiration  of  the  term,  and  that  the 
party  in  occupation  afterwards  held 
under  a  distinct  and  independent 
agreement  with  the  lessor,  may  how 


632 


INDEX. 


ever  be  implied  from  circumstance 

ib 

4.  The  fact  that  the  lessee  had  failed 
that  the  defendant  succeeded  to  the 
same  business  which  the  lessee  hac 
previously  carried  on  in  the  same 
premises ;  that  when  the  lessor  was 
advised  of  these  facts,  that  the  de- 
fendants gave  him  their  assurance 
that  he  need  feel  no  concern  for  his 
rent,  that  they  continued  thereafter 
to  pay  the  rent  to  him  and  not  to  the 
lessee,  and  that  they  applied  to  hire 
the  premises  from  the  lessor  for  an- 
other year,  telling  him  they  were 

j  among  his  best  tenants,  and  had  al- 
ways paid  their  rent  punctually, — 

!  Held,  sufficient  to  warrant  a  jury  in 
finding  in  an  action  for  use  and  oc- 
cupation, that  there  was  a  change  of 
tenancy  by  the  consent  of  all  parties. 

ib. 


VENDOR    AND    VENDEE. 

1.  Where  by  the  terms  of  a  contract  of 
sale  of  real  estate,  a  day  is  fixed  for 
the  payment  of  money  by  the  vendee, 
and  the  delivery  of  a  deed  by  the 
vendor,  the  vendor  is  bound  to  seek 
the  vendee  and  tender  the  deed,  or  by 
some  act  call  upon  him  to  perform 
his  contract,  before  he  can  place  the 
vendee  in  such  a  position   as  will 
work  a  forfeiture  of  a  sum  paid  on 
account    of    the     purchase     price. 
Thomas  v.  Wichman,  58 

2.  The  fact  that  the  vendee  quits  the 
premises  before  the  day  agreed  upon 
for  the  delivery  of  the  deed,  does 
not    absolve   the    vendor  from  his 
obligation  to  tender  a  deed,  if  he 
wishes  to  put  an  end  to  the  contract. 


3  And  the  vendee  having  subsequently 
made  a  tendor  of  performance  of  his 
part  of  the  contract  may,  on  refusal  of 
the  vendor  to  deliver  a  deed,  recover 
a  sum  iid  under  the  contract.  ib. 


and  would  not  excuse  the  vendor's 
default  to  perform  or  tender  a  per- 
formance on  his  part.  ib. 

See  COUNTERCLAIM,  1,  2. 
SALE  AND  DELTVEBY. 


4.  A  declaration  by  the  vendee's  attor- 
ney, made  prior  to  the  day  on  which 
the  title  was  to  be  passed,  that  the 
vendee  did  not  want  the  title,  —  Held, 
no  evidence  that  the  vendee  did  not 
intend  to  complete  the  contract  on 
the  day  specified  in  the  contract  ; 


w 

WAREHOUSEMAN. 

L  A  warehouseman  who  takes  goods 
upon  storage  for  hire  is  answerable 
for  their  loss,  or  the  loss  of  any  part 
of  them,  not  proceeding  from  the 
inherent  nature  of  the  goods,  such  as 
absorption,  deterioration,  or  like 
cause,  unless  he  can  show  that  the 
loss  occurred  under  circumstances 
exonerating  him  from  all  blame  ;  or 
if  he  cannot  do  that,  that  he  exercised 
a  degree  of  care  in  their  safe-keeping, 
that  would  repel  any  suspicion  of 
the  loss  having  occurred  through  his 
negligence  or  dishonesty.  Arent  v. 
Squire,  347 

.  It  is  sufficient  for  the  plaintiff  in  the 
action  to  show  that  the  property  en- 
trusted to  the  warehouseman  has 
not  been  restored  on  demand,  or  has 
been  returned  diminished  in  quan- 
tity, or  injured.  It  is  then  incumbent 
upon  the  defendant  to  show  how  the 
loss  or  injury  occurred,  or  that  he 
exercised  proper  care, — as  it  is  to  be 
assumed  that  the  one  who  had  the 
control  and  custody  of  the  property, 
is  better  able  to  account  for  its  loss 
or  injury  than  the  one  who  confided 
it  to  his  keeping.  ib. 

3.  The  presumption  that  all  persons 
are  presumed  to  have  duly  discharged 
an}'  duty  imposed  upon  them  by  law, 
is  allowed  for  the  benefit  of  those  en- 
trusted with  the  discharge  of  public 
duties  as  well  as  for  those  interested 
in  or  affected  by  the  discharge  of 
them.    Whether  a  presumption  of 
this  nature  is  to  be  applied  to  private 
persons  or  not,  will  depend  upon  the 
circumstances    of    each    particular 
case.  ib. 

4.  Where  a  bailee  for  hire  returns  the 
property    committed    to    his    care 
materially  injured,  or  fails  to   return 
all  that  was  entrusted  to  him,  it  is  a 
more  legitimate  inference  to  conclude 
that  there  was  a  want  of  proper  care 
and  diligence  than  to  presume  that 
it  was  exercised.  ib. 


INDEX. 


633 


5.  The  plaintiff  stored  with  the  defen- 
dant ten  pipes  of  gin,  which  were 
gauged  in  the  defendants'  wareroom 
on  the  day  when  they  were  received, 
and  when  gauged  upon  their  rede- 
livery  to  the    plaintiff,    there   was 
found  to  be  a  deficiency  in  two  of  the 
pipes  of  about  sixty  gallons,  to  re- 
cover for  the  value  of  which  the 
action  was  brought.    Upon  this  state 
of  facts,  the  defendants  moved  for  a 
non-suit  upon  the  ground  that  there 
was  nothing  to  show  that  the  loss 
was  occasioned  by  their  negligence, 
— Hddy  that  the  motion 

denied. 

6.  The  defendants  then  proved  that  the 
two  pipes  were  stored  with  the  rest 
in  a  loft  to  which  nobody  had  access 
but  themselves  and  their  employees. 
They  gave  some   evidence   of  the 
trustworthiness  of  their  employees, 
but  neither  they  nor  their  employees 
were  examined  as  witnesses  to  show 
that  they  knew  nothing  of  the  man- 
ner in  which  the  loss  occurred,  and 
there  was  evidence  from  which  it 
was   fairly  inferable  that  the  two 
pipes  had  been  recoopered  while  in 
the  defendants'  loft,  but  by  whom  or 
for  what  purpose,  was  not  shown, — 
Held,  not  sufficient  to  exonerate  them 
from  liability.  ib. 

WITNESS. 

1.  Where  the  complaint  was  not  given 

in  evidence,  and  the  plaintiff  was  not 

asked  any  questions  in  relation  to  its 

contents, — Bdd,  that  the  judge  prop- 

I 


erly  refused  to  charge  the  jury  that 
the  discrepancy  between  ttie  plain- 
tiff's sworn  complaint,  sihd  his  evi- 
dence and  the  testimony,  might  be 
taken  into  consideration  in  consider- 
ing his  credibility.  Fash  v.  Third 
Ave.  R  M.  Co.,  148 

2.  Husband  and  wife  cannot  be  exam- 
ined either  for  or  against  each  other 
except  in  cases  where  they  are  par- 
ties to  the  suit.  Eogers  v.  Rogers,  194 

3.  The  question  to  a  witness,  for  the 
purpose  of  impeaching  his  credibil- 
ity, whether  he  had  not  been  ex- 
pelled from  an  Odd  Fellows'  lodge, — 
Held,  properly  excluded,  as  an  affirm- 
ative answer  would  not  affect  the 
credibility  of  the  witness.     Greaton 
v.  Smith,  380 

4.  An  offer  to  show  that  the  witness 
had  been  convicte^d  and  imprisoned 
for  gross  intoxication  on  a  certain 
day, — Held,  properly  excluded,  as  it 
was  an  effort  to  impeach  a  witness 
by  proof  of  a  particular  offence,    ib. 

5.  The  cross-examination  of  a  witness , 
as  to  a  conversation  had  by  him, 
must  be  limited  to  that  particular 
subject  of  the  conversation  which 
was  brought  out  on  the  direct  ex- 
amination.   The  whole  conversation 
cannot  be  given  on  the  cross-examin- 
ation. «&. 

See  ARREST,  3, 
JURY. 


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